(Breach of Fiduciary Duty)   (Declaratory Judgment)    (Gross Negligence)   (Negligence)   (Uniust Enrichment)   1.220(b)(2), which states: "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." Here, Defendant's consistent  business practice affects all Class Members, including Buyers who may use Defendant as their  Closing Agent at the selection of Sellers in the future. Therefore, Defendant's wrongful business  practice is continuing and on-going.   10.  A copy of the Contract is attached hereto as Exhibit "A".   11.  Paragraph 9 of the Contract states in relevant part:   2.? , � Broker or statutory obligetions undor Cheater giTS, F S., eS amended. Far purpoaes of this Perayrkriph 14. Broker  will be troatud as a party to this Contract. This Paragraph 14 shalt survive Closing or terreinalion of this Contract.  24.  Plaintiff re-alleges and incorporates by reference all allegations set forth in the  preceding paragraphs of this Complaint, as if fully set forth verbatim herein.   25.  Plaintiff brings this class action under Florida Rules of Civil Procedure 1.220(b)(1)  and/or 1.220(b)(2), and in the alternative, 1.220(b)(3) on behalf of himself and on behalf of a  I  similarly situated "Class" or "Class Members."   27.  Plaintiff brings this class action individually, and on behalf of a putative class of  similarly situated Buyers, and seeks class certification of the claims and issues pleaded in this  Complaint, on behalf of the Class defined as follows:  All Buyers in all cash real estate sale transactions in Florida, that used an "AS  IS" Residential Contract for Sale and Purchase form approved by the Florida  Bar and Florida Association of Realtors, that selected sub-paragraph (i) of  section 9(c), but who were charged and paid a Closing Agent Closing Services  Fee, during the four years precedent to the date of filing this Complaint,  through and until the date Notice is provided to the Class.   28.  Excluded from the Class are governmental entities, Defendant, any entity in which  Defendant has a controlling interest, and Defendant's officers, directors, affiliates, legal  representatives, employees, co-conspirators, successors, subsidiaries, and assigns. Also excluded  from the Class is any judge, justice, or judicial officer presiding over this matter and the members  of their immediate families and judicial staff.   29.  All Class Members were and are similarly affected by Defendant's conduct and  business practice because they all were cash Buyers who agreed to be charged consistent with  section 9(c)(i) of the uniform and standardized FARBAR Contract, but who were all nonetheless  charged and paid Closing Services Fees.   31.  A class action is also appropriate pursuant to Florida Rule of Civil Procedure   33.  Based on the estimated number of all cash land sale transactions throughout Florida  and investigation of counsel, it is readily apparent that the number of Buyers is so large as to make  joinder impractical. Based on information and belief, the size of the Class is likely in the thousands  and easily includes more than forty (40) class members. Nevertheless, despite the estimated size  of the Class, Class Members may be notified of the class certification and pendency of this action  by recognized, Court-approved notice dissemination methods, which may include U.S. Mail,  electronic mail, Internet postings, and/or published notice through the assistance of a Class Action  Administrator.   35.  The claims asserted by Plaintiff in this action are typical of the claims of Class  Members as the claims arise from the same course of conduct by Defendant, and the relief sought  within the Class is common to each of the Class Members.   36.  Plaintiff and Plaintiffs counsel will fairly and adequately represent and protect the  interests of the Class. Plaintiff has retained counsel competent and experienced in both consumer  protection and class action litigation. Plaintiffs counsel has represented consumers in a wide  variety of class actions where they were approved as class counsel.   37.  A class action is a fair and appropriate method for the adjudication of the  controversy, in that it will permit a large number of claims to be resolved in a single forum  simultaneously, efficiently, and without the unnecessary hardship that would result from the  prosecution of numerous individual actions and the duplication of discovery, effort, expense and  burden on the courts that individual actions would engender.   38.  The benefits of proceeding as a class action, including providing a method for  obtaining redress for claims that would not be practical to pursue individually, outweigh any  difficulties that might be argued regarding the management of this class action.   39.  Absent a class action, it would be highly unlikely that the representative Plaintiff  or any other Class member would be able to protect their own interests because the cost of litigation  through individual lawsuits might exceed expected recovery.   40.  The questions of law or fact common to the respective Class Members predominate  over questions of law or fact affecting only individual members.   42.  Plaintiff adopts and realleges paragraphs 1 through 41 as if fully set forth herein.   43.  Defendant was the Closing Agent for Plaintiffs cash purchase of real property  pursuant to the Contract.   44.  Defendant owed a duty of care to Plaintiff and Class Members to act competently  and diligently with regards to closing the sale between Buyers and Seller.   45.  In performing Closing Services for the transaction, Defendant breached its duty of  care to the Plaintiff in the process of closing the sale and acted with gross negligence, as Defendant  either wholly failed to review Paragraph 9(c) of the Contract or recklessly disregarded the terms  of Paragraph 9(c) of the Contract.   46.  Consequently, Plaintiff and Class Members were charged a Closing Services Fee,  despite the Contract stating that the Closing Services Fee would be charged to the Seller.   47.  Defendant's conduct evidences a reckless indifference to the rights of Plaintiff and  a failure to exercise even the slightest degree of care.   48.  As a direct and proximate result of the Defendant's gross negligence, Plaintiff and  Class Members have been damaged.  WHEREFORE, Plaintiff demands judgment for damages in the amount of the total Closing  Services Fees paid by and charged to Plaintiff and Class Members, together with interest and costs  and an award of attorney's fees as permitted pursuant to applicable common benefit law.  49.  Plaintiff adopts and realleges paragraphs 1 through 41 as if fully set forth herein.   51.  Defendant owed a duty of care to Plaintiff and Class Members to act competently  and diligently with regards to closing the sale between Buyers and Seller.   52.  In performing Closing Services for the transaction, Defendant breached its duty of  care to the Plaintiff in the process of closing the sale and acted with negligence, as Defendant failed  to supervise and carry out the closing in a reasonable matter, in that Defendant either neglected to  review Paragraph 9(c) of the Contract or disregarded the terms of Paragraph 9(c) of the Contract.   53.  Consequently, Plaintiff was charged a Closing Services Fee, despite the Contract  stating that the Closing Services Fee would be charged to the Seller.   54.  Defendant's conduct evidences a failure to exercise reasonable care.   55.  As a direct and proximate result of the Defendant's negligence, Plaintiff and Class  Members have been damaged.  WHEREFORE, Plaintiff demands judgment for damages in the amount of the total Closing  Services Fees paid by and charged to Plaintiff and Class Members, together with interest and costs  and an award of attorney's fees as permitted pursuant to applicable common benefit law.  56.  Plaintiff adopts and realleges paragraphs 1 through 41 as if fully set forth herein.   57.  By virtue of its status as the closing or escrow agent in its relationship with the  Plaintiff and Class Members, Defendant owed a fiduciary duty to Plaintiff and Class Members to  deal in the utmost good faith and in the interest of the Buyers.   58.  As Closing Agent, Defendant's fiduciary duty included the duty to conduct and  supervise the closing in a non-negligent manner, and with honesty and in good faith.   60.  As a direct and proximate result of Defendant's breach and dereliction of fiduciary  duty, Plaintiff and Class Members have been damaged.  WHEREFORE, Plaintiff demands judgment for damages in the amount of the total Closing  Services Fees paid by and charged to Plaintiff and Class Members, together with interest and costs  and an award of attorney's fees as permitted pursuant to applicable common benefit law.  61.  Plaintiff adopts and realleges paragraphs 1 through 41 as if fully set forth herein.   62.  This Court has jurisdiction over this action for Declaratory Relief pursuant to Fla.  Stat. § 86.011.   63.  As a Buyer in the real estate transaction that is the subject of this action, Plaintiff  has a legal interest in, and there is doubt, as to whether Defendant was entitled under the Contract  to charge Plaintiff a Closing Services Fee in connection with Plaintiff's purchase of the Property  referenced in the Contract.   64.  There is bona fide, justiciable controversy between the parties as to Defendant's  entitlement to charge Plaintiff and Class Members a Closing Services Fee, and an actual, practical,  and present need for a declaration.   65.  Plaintiffs entitlement to a return of the Closing Services Fee improperly charged  to Plaintiff is dependent on a declaration of facts, or the law applied to the facts of this dispute.   66.  Plaintiff and Defendant have an actual, present adverse interest in the subject matter  of the declaration requested, either in fact or law.   68.  Plaintiff adopts and realleges paragraphs 1 through 41 as if fully set forth herein.   69.  This cause of action is pleaded as an alternative to Plaintiffs legal remedies alleged  in this Complaint.   70.  Plaintiff and Class Members conferred a benefit on Defendant, in that Defendant  collected an improper and wrongful Closing Services Fee from Plaintiff and Class Members.   71.  Defendant knew and appreciated that it charged and collected a Closing Services  Fee from Plaintiff and Class Members, as Defendant prepared the Closing Statement and  conducted and supervised the closing.   72.  Defendant voluntarily accepted and retained the Closing Services Fees paid  Plaintiff and Class Members.   73.  As a direct and proximate result of the foregoing, Plaintiff has been damaged.   74.  The circumstances render Defendant's retention of the Closing Services Fees paid  by Plaintiff and Class Members inequitable and unfair unless Defendant returns the money that  was improper collected from Plaintiff and Class Members.   9.  The Contract is a standardized form known as the "'AS IS' Residential Contract  for Sale and Purchase" approved by the Florida Bar and Florida Association of Realtors.  (hereinafter "FARBAR Contract").   9. � CASE No.:  JOHN P. HAINES, individually and on � CLASS REPRESENTATION  behalf of all others similarly situated,  Ii) FOREIGN INVESTMENT IN REAL PROPERTY TAX ACT ("FIRPTA"): Seiler shot! inform Buyer in wilting if  • ,: �Seller Is a 'foreign person'.  as defined by the Foreign Investment in Real Properly Tax Ac! ("FIRPTA'). Buyer  and Seller shall comply with FIRPTA, which may require Seller to provide additional cash at Closing. If Selter  is not a 'foreign person', Seller can provide Buyer. at or prior to Closing, a certification of non-foreign status:   :.4 �under eanallies of perjury, to inform Buyer and Closing Agent that no withholding is required. See STANDARD  . g' � V for further Information pertatning to FIRPTA. Buyer and Seiler are advised to seek legal counsel and tax  - tzt �advice regarding their respedve rights. obligations, reloading and 1,..t..ho.-  vi h IA ing requirements pursuant to  WRITTEN OR OTHERWISE) .OF BROKER. Buyer arid Seller endividuelia. the "indemnifying Party) each  indhadually indemnifies holds harmless, and releases Broker and Brokers officers, directore, egenle and  •  employees from all !lability. for toss or damage, induding ire costs and expenses, and reasonable attorney's fees at  •  all levels, suffered or incurred by Broker and arelter,e officers, directors, agents and employees in conpection with  • n � or arising from claims. -demands or causes of action Instituted by Boyar or Seller based on; ti/ inaccuracy of  ae � information provided by The Indemnifying Party or from public records; (ii) Indemnifying Party's neest.etement(s) or  o � failure tri perform contractual Obligations; (iii) BrokeeS preformence at indemnifying Party's request, of any task  beyond atG scope of services regulated by Chapter 475. F S.. .as .amended; including Broker's referral,  _17  recommendation or retention of any vendor for, or on behalf of. Indemnifying Perty; (iv) products or Servicaa  r 1 � Pi tiVig) ed by any such vendor for, or an behalf of, Indempifying Party and tv) expenses incurred by any earth Venikit.  .o.: � Buyer and Seller each assume" full responsibility for salectieg and compensating their respective vendors not   ret;acvned  e � paying their other costs Under this,Contract whether et northie transoclion closes. This Paragraph  4 w  