Office of Attorney General Pam Bondi
Appellate Alert
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Date issued: 02/19/2019
Editor: Betsy Stupski
Clicking the icon following the number of each case cited below will link you directly to the cited opinion. In addition, full texts of recent slip opinions are available by clicking "VIEW" at the top of your screen, then "SLIP OPINIONS." AGOs are available in the separate AGO database.
Appellate Alert 2019-2
February 19, 2019
United States District Court, Northern District of Florida
N.P., a minor By E.P. his Natural Guardian v. The School Board of Okaloosa County 18-cv-453
11/5/18
A court should resolve the issues of sovereign immunity and qualified immunity before allowing discovery.
The Plaintiff sued a number of Defendants for the mistreatment of N.P in a pre-kindergarten program. The complaint included twenty state and federal counts including ones arising under §1983 and the Americans with Disabilities Act. Several of the Defendants filed Motions to Dismiss, arguing that they were entitled to sovereign immunity. In addition, one of the Defendants filed a Motion to Stay Discovery until the Court issued a ruling on the Motions to Dismiss.
The District Court granted the Motion to Stay Discovery stating, “Qualified immunity seeks to protect government officials from the cost of trial and the burdens of broad reaching discovery…As such, a court should resolve the issues of sovereign and qualified immunity before allowing discovery.”
18-cv-453
First District Court of Appeal
Beanblossom v. Bay District Schools, Bay County Florida 1D17-0980
1/14/19
Plaintiff was not permitted to amend complaint with clearly meritless claims.
Trial courts are encouraged to allow amendments to pleadings, but the right to amend is not unlimited.
The Plaintiff sued the School District, alleging a whistleblower claim and a negligent retention claim. The Defendant moved for summary judgment. Close to the time for hearing on summary judgment, the Plaintiff sought to amend her complaint by asserting four new counts including one alleging a First Amendment violation and also adding a Defendant. At least one of the claims alleged a different factual theory. The trial court rejected her motion to amend and granted summary judgment.
The First District affirmed stating, “Although permitting pleading amendments is encouraged, when making this determination, trial courts should consider prejudice to the opposing party, abuse by the moving party, and whether the proposed amendments would be futile.”
1D17-0980
Third District Court of Appeal
WD 119790 LLC v. Dan Trust 3D17-1706
1/23/19
Court’s temporary injunction for trespass did not include airspace.
Adjacent property owners were in litigation over allegations of trespass. WD, the Defendant, was building a large structure on its property located between two lots owned by Dan Trust. WD initially was under the mistaken belief that it had permission to enter one of the vacant lots in order to facilitate construction. Dan Trust demanded that WD cease and desist from entering the property owned by Dan Trust. When WD failed to comply, Dan Trust filed an action for trespass and sought a temporary injunction which was granted in part. Later WD set up a tower crane which swung over the airspace of the property that belonged to Dan Trust. Dan Trust then asserted that the injunction included the trespass of airspace and filed a Petition to Enforce the Injunction as to the airspace. The trial court found in favor of WD.
The question before the Third District was whether the trial court order granting injunctive relief included airspace trespass. The Court found that the order did not include airspace. “The trial court’s temporary injunction order does not delineate the specific actions that constitute trespass upon Dan’s property. The presumption is that WD is enjoined from committing the actions listed in Dan’s motion, which largely mirrors the actions listed in the complaint. However, the motion and the complaint are devoid of any reference to airspace trespass generally or to WD’s use of a tower crane over Dan’s property. It is well-settled that ‘[a] circuit court is not authorized to grant injunctive relief where an injunction has neither been requested, nor proven’…We are unable to read an airspace trespass into an injunction order where the issue was neither pled in the complaint nor in the underlying motion.”
3D17-1706
Ultra Aviation Services, Inc. v. Clemente 3D18-1569
2/13/19
Miami’s Living Wage Ordinance did not apply to contractor who was not specifically providing “goods and services” to the County.
Florida political subdivisions are generally not permitted to impose minimum wage requirements that exceed state and federal requirements except in very limited circumstances.
Miami-Dade County passed a County Living Wage Ordinance which exceeded the State and federal minimum wage described in Florida Statutes, Section 218.077. The ordinance required all contractors with Miami-Dade County to comply with the ordinance. Later an employee of Ultra Aviation Services, Inc (Ultra) sued his employer who contracted with the County to provide aviation services at Miami International Airport. He claimed that Ultra had violated Miami’s Living Wage ordinance . In turn, Ultra argued that the Living Wage Ordinance was preempted by section 218.077, Florida Statutes. The County moved and was allowed to intervene as an indispensable party. All parties filed Motions for Summary Judgment. Ultimately, the trial court found in favor of the Plaintiff and Miami-Dade County. Ultra then appealed.
In its analysis, the Third District stated that generally section 218.077, Florida Statutes prohibits local governments from imposing minimum wage requirements exceeding federal or state minimum wage laws. However, the Court went on to note that the statute permitted political subdivisions to impose a higher minimum wage in limited circumstances such as with contractors providing goods and services to the political subdivision. The question for the Court then became whether Ultra met the criteria for the exception. After a review of the record, the Court stated, “ We acknowledge that the County benefits from Ultra’s business in a derivative or collateral sense, in that the provision of services by Ultra to private air carriers at MIA ensures that MIA continues to bring air traffic and related businesses to the area. That is not, however, a direct ‘provision of goods and services’ to the County, and we decline to so hold.”
3D18-1569
Fourth District Court of Appeal
Davis and McCabe v. Bailynson 4D18-1040
1/30/19
The entire case does not have to be untenable or frivolous in order to be entitled to attorney’s fees. The current version of the statute does not apply only to an entire action, but now applies to any claim or defense.
Plaintiffs who were condominium owners sued to enjoin the board of directors from allegedly mishandling a loan obtained by the condominium association and from altering condominium public areas, and from increasing assessed condominium fees. The trial court entered an injunction that prevented any increase or additional fees. The Defendant hired an attorney , Cohen, to countersue Plaintiffs Davis and McCabe. The countersuit alleged that Davis and McCabe breached a fiduciary duty to the association and that the injunction obtained by Davis and McCabe resulted in the association being unable to pay the water bill. Davis and McCabe responded with a motion for attorney’s fees pursuant to sections 57.105(1)(b) and 57.105(3)(c), Florida Statutes . They argued that the countersuit was untenable. The motion sought fees from Cohen, the attorney, but did not seek fees from the Defendant. The trial court denied the motion for attorney’s fees finding that the action was not completely apprehensible and also finding that attorney fees could not be awarded solely against the attorney. Davis and McCabe appealed.
The questions before the Fourth District were whether the trial court had properly denied the motion for the attorney’s fees and whether it was permissible to seek attorney’s fees solely from the attorney and not from the party as well. The Court noted , “Although section 57.105(1) states that the award of fees must be awarded “in equal amount by the losing party and the losing party’s attorney,” this is limited by section 57.105(3)(c). Section 57.105(3)(c) clearly states that attorney’s fees cannot be levied upon a party, where the basis for attorney’s fees pursuant to section 57.105 is subsection (1)(b) and the claim or defense is not supported by the application of then-existing law to the material facts.” The court went on to state, “Although we are satisfied the trial court used the correct standard in applying section 57.105(1), we conclude the trial court erred by ignoring the application of section 57.105(3)(c) to section 57.105(1)(b). We hold that under proper circumstances, section 57.105(3)(c) permits the filing of a section 57.105(1)(b) fee motion solely against an attorney, and not the client.” The Court went on to determine that the action did not have to be completely untenable in order to grant a fee award. The Court stated, “…if an action asserts a theory of liability using more than one, but separate, factual scenarios in support of the theory, and one of the factual scenarios meets the criteria for a 57.105(1) fee sanction because it is not supported by law, the sanction must be ordered. Our conclusion is based on the change in the statute, and how courts have interpreted the language of the amended statute. Under the previous version of the statute, ‘[e]ven if a portion of the complaint is frivolous, an award of attorney’s fees is not appropriate so long as the complaint alleges some justiciable issues.’ …However, “the revised statute expanded the number of circumstances in which fees should be awarded.”…. ‘Unlike the prior version [of section 57.105], the current version of the statute does not apply only to an entire action, but now applies to any claim or defense.’” The Court concluded by reversing and remanding for additional fact finding.
4D18-1040
Fifth District Court of Appeal
Maloy v. Seminole County 5D18-748
2/15/19
The County Clerk was required to invest surplus funds as directed by the Board of County Commissioners.
The Seminole Board of County Commissioners brought an action for Writ of Mandamus against the County Clerk that would compel the Clerk to invest surplus funds as directed by the Board. The trial court granted the Writ pursuant to section 218.403(8), Florida Statutes which provides that surplus funds should be invested consistent with an investment plan adopted by the governing body of the County. Arguing that he had the authority to invest surplus pursuant to section 28.33, Florida Statutes which directs the County Clerk to invest surplus funds, the Clerk appealed.
The Fifth District read the two statutes, sections 218.403(8) and 28.33 to determine that the Clerk was indeed required to invest the funds as directed by the Board. The Court stated, “The trial court did not err in issuing the writ of mandamus. The investment decisions of county surplus funds do not reside with the counties in every instance. Rather, the clerk of circuit court has discretion in the investment of county surplus funds except for those surplus funds covered by a county’s investment policy. In this case, the Board has directed the investment of the County’s surplus funds, and the Clerk must comply with that direction.”
5D18-748
Florida Circuit Court, Twelfth Judicial Circuit in and for Sarasota County
Torres v. Sarasota Emergency Associates, P.A. et al 2016-CA-3186
11/26/19
A private physician group that had contracted to provide emergency services to a public hospital was not subject under the “delegation test “or the “totality of circumstances” test to Florida Public Records law.
Sarasota Emergency Services (SEA) is a private physician group that contracted to provide emergency room services to Sarasota Memorial Hospital (SMH), a public hospital. Dr. Torres, the Plaintiff, who was an employee of SEA sought several types of records from SEA pursuant to Florida Public Records law. SEA argued in turn that the records sought by Plaintiff were not public records and that SEA was not a public entity subject to Florida public records law. In making its determination on whether SEA was subject to a public records request, the circuit court first looked at the delegation test. The court stated, “where the provision of goods or services by a private entity for the benefit of a public agency amounts to the complete assumption of a governmental obligation, the private entity’s documents concerning the governmental function are subject to Chapter 119.” After reviewing the facts, the court determined that the Defendants in this case had not completely assumed SMH’s public function. In addition to the delegation test, the court also looked the totality of factors test to determine SEA was not subject to the public records law. The court concluded by saying, “ Based on the undisputed facts and the totality of the Schwab factors, the Court finds that Defendants have contracted to provide select services to SMH in furtherance of its governmental function , rather than on behalf of SMH in satisfaction of its governmental function. In light of this determination, Defendants are not agencies within the meaning of Chapter 119 and are therefore not subject to Florida public records law.”
2016-CA-3186