Supreme Court of Florida
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No. SC13-455
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BEACH COMMUNITY BANK,
Petitioner,
vs.
CITY OF FREEPORT, FLORIDA,
Respondent.
[November 13, 2014]
PER CURIAM.
Beach Community Bank seeks review of the decision of the First District
Court of Appeal in City of Freeport v. Beach Community Bank, 108 So. 3d 684
(Fla. 1st DCA 2013), in which the First District held that it could exercise its
certiorari jurisdiction to review the trial court’s nonfinal order finding that the City
of Freeport was not immune from suit based on sovereign immunity. In its
decision, the First District relied in part on Miami-Dade County v. Rodriguez, 67
So. 3d 1213 (Fla. 3d DCA 2011), a decision that this Court was considering on
appeal at the time. We accordingly have jurisdiction. See art. V, § 3(b)(3), Fla.
Const.; Jollie v. State, 405 So. 2d 418, 420 (Fla. 1981).
We stayed the proceedings in Beach Community Bank pending our
disposition in Rodriguez, in which the Third District Court of Appeal used its
certiorari jurisdiction to address whether the defendant was immune from suit
based on principles of sovereign immunity. See Rodriguez, 67 So. 3d at 1223.
Subsequently, in Rodriguez, we quashed the Third District’s decision and held that
certiorari review was improperly used in that case, after analyzing both
“irreparable harm” and “departure from the essential requirements of law.”
Rodriguez v. Miami-Dade Cnty., 117 So. 3d 400, 404-06 (Fla. 2013). We further
stressed that Rodriguez involved essential factual disputes that are not
appropriately addressed through a petition for a writ of certiorari. Id. at 402.
After our decision in Rodriguez was final, we issued an order to show cause
in this case requesting that the parties respond as to why the First District’s
decision in this case should not be quashed based on our decision in Rodriguez.
While conceding that Rodriguez is dispositive as to the First District’s decision, the
City urges this Court to accept review and determine that Florida Rule of Appellate
Procedure 9.130, which enumerates the types of nonfinal orders that district courts
may review, should be expanded to encompass orders determining, as a matter of
law, whether a party is entitled to immunity based on sovereign immunity. The
City stresses that, in contrast to Rodriguez, this case involves a pure legal question
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turning on whether the allegations of negligence against the City concern
discretionary, planning-level decisions.
Significantly, in deciding whether to accept review in this case, it is
important to point out that the Florida Bar Appellate Court Rules Committee has
already submitted a proposed amendment to rule 9.130, which has been addressed
in In re Amendments to Florida Rule of Appellate Procedure 9.130, No. SC13-
1493 (Fla. Nov. 13, 2014), and answers the question that the City asks this Court to
confront in this case. This amendment permits district courts to review nonfinal
orders of decisions determining entitlement to sovereign immunity where the case
involves a pure legal question.
In this case, the First District concluded that the City’s claim to sovereign
immunity rested on a pure question of law. We agree. Because this case falls
squarely within the new rule amendment, we determine that the City should be
entitled to the benefit of the new rule. This procedure is similar to the procedure
that we followed in Keck v. Eminisor, 104 So. 3d 359, 366 (Fla. 2012), where this
Court held that the defendant’s claim of individual immunity should be subject to
interlocutory review by a narrow amendment to rule 9.130, as opposed to utilizing
a common law writ of certiorari. Accordingly, we remanded the case for
proceedings consistent with our opinion and requested the Florida Bar Appellate
Court Rules Committee to submit a proposed amendment that would address the
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rule change mandated by our decision in Keck. See also Tucker v. Resha, 648 So.
2d 1187, 1190 (Fla. 1994) (agreeing with the district court’s conclusion that
Florida’s appellate rules at the time did not provide for interlocutory review of the
nonfinal order and amending the appellate rules immediately to permit
interlocutory review of a claim of qualified immunity to the extent that the order
turns on an issue of law); Mandico v. Taos Constr., Inc., 605 So. 2d 850, 855 (Fla.
1992) (quashing the decision to the extent that the district court addressed the legal
issue through an improper extraordinary writ, but declaring that the rules of
appellate procedure must be amended immediately and approving the decision to
dismiss the suit).
Here, Beach Community Bank filed an action against the City of Freeport,
asserting that the City failed to ensure a real estate developer posted an adequate
security for completion of the infrastructure and failed to conduct a reasonable
investigation to ascertain the authenticity and adequacy of the letter of credit,
including whether the bank that issued the letter of credit was financially able to
pay the letter of credit if it were called. The City moved to dismiss the complaint,
asserting that the City did not owe Beach Community Bank any duty of care as to
its claim and even if a duty existed, the City had complied with its own Land
Development Code (LDC) so requesting additional acts beyond that explicitly
required by the LDC was a challenge to the City’s policy-making, planning-level
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decisions, to which sovereign immunity applies. The First District held that the
City was entitled to sovereign immunity, resolving that question of law as follows:
The Bank’s complaint alleged that, having adopted a provision
in its LDC giving the City the authority to require the developer to
post security to ensure completion of the Riverwalk development, and
in fact having required such security in this case, the City negligently
enforced its LDC by failing to conduct a reasonable investigation into
the adequacy of the security posted by the developer. Specifically, the
complaint alleged that the City was negligent by failing to conduct
any investigation of DC Capital to determine the authenticity of the
letter of credit and by further failing to investigate DC Capital’s
financial ability to pay if the letter of credit was called.
To answer the question of whether sovereign immunity bars
this action, it is necessary to determine whether the negligence alleged
by the Bank relates to a discretionary or operational function of
government. In this context, a “discretionary,” planning-level
function involves “an exercise of executive or legislative power such
that a court’s intervention by way of tort law would inappropriately
entangle the court in fundamental questions of policy and planning.”
Mosby v. Harrell, 909 So. 2d 323, 328 (Fla. 1st DCA 2005). An
“operational” function, on the other hand, “is one not necessary to or
inherent in policy or planning, that merely reflects a secondary
decision as to how those policies or plans will be implemented.”
Dep’t of Health & Rehabilitative Servs. v. B.J.M., 656 So. 2d 906,
911 n.4 (Fla. 1995); Mosby, 909 So. 2d at 328. Operational decisions
are not immune. Trianon Park Condo. Ass’n v. City of Hialeah, [468
So. 2d 912, 924 (Fla. 1985)]. “Functionally, the discretionary-versus-
operational test is intended to determine where, in the area of
governmental processes, orthodox tort liability stops and the act of
governing begins.” Wallace [v. Dean, 3 So. 3d 1035, 1044 (Fla.
2009)] (internal quotations omitted).
The City asserts it is immune from suit because its decisions
concerning how it allocates its resources, enforces its laws, and
protects the public are matters usually protected from judicial
interference. See Trianon Park Condo. Ass’n, 468 So. 2d at 918-20
(“[C]ertain discretionary functions of government are inherent in the
act of governing and are immune from suit.”). In Carter v. City of
Stuart, 468 So. 2d 955, 957 (Fla. 1985), the Florida Supreme Court
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held that a city’s discretionary choice to enforce laws, including the
priority and manner of enforcement, is a planning-level, judgmental
decision for which the government is immune from liability.
Applying this principle to the facts of the case, the Carter court
determined that the amount of resources and number of employees to
be allocated to the enforcement of an “animal control” ordinance were
municipal “policy decisions” over which the city had the right to set
priorities regarding whether or not to enforce its ordinance. Id.
By analogy to Carter, the City, as the sovereign, asserts its right
to enforce its own LDC, to enforce it partly, or not to enforce it at all.
The City had the right to decide what level of compliance was
sufficient and how much, if any, of its limited resources should be
allocated to enforcing compliance by a developer putting up security
for an approved development. . . .
As a matter of policy, the City had the right to decide it would
require developers to post security. In so doing, the LDC obliged the
City to approve as adequate the amount of the security, which is
calculated based on the criterion expressed in the LDC. The Bank
does not challenge the amount of the security posted. The City’s
decision that receipt of a written guarantee of security was sufficient
compliance with the LDC falls within a municipality’s inherent,
fundamental policy-making authority. Regardless of its wisdom, the
City’s decision not to dedicate resources towards fraud prevention by
investigating the authenticity of the security or the financial solvency
of its backer, was a policy decision that we are not permitted to
second-guess.
Beach Community Bank, 108 So. 3d at 690-91. We agree that the City was
entitled to sovereign immunity regarding the question presented here.
The amendment to rule 9.130 covers this exact scenario pertaining to a
nonfinal order denying a sovereign immunity defense as a matter of law.
Accordingly, we accept jurisdiction and quash the decision below to the extent that
the First District relied on Rodriguez to review the question based on a writ of
certiorari. However, because the amendment addressed in In re Amendments to
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Florida Rule of Appellate Procedure 9.130, No. SC13-1493, covers this exact
scenario pertaining to a nonfinal order denying a sovereign immunity defense as a
matter of law, and because we approve the opinion below as it relates to whether
the City was entitled to sovereign immunity in this case, we remand this case for
further proceedings consistent with this opinion. See, e.g., Mandico, 605 So. 2d at
855 (following a similar procedure where the Florida Rules of Appellate Procedure
were amended after the district court addressed the legal issue through the
improper use of an extraordinary writ).
It is so ordered.
LABARGA, C.J., and PARIENTE, QUINCE, and PERRY, JJ., concur.
LEWIS, J., concurs in part and dissents in part with an opinion.
CANADY and POLSTON, JJ., concur in result only.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
LEWIS, J., concurring in part and dissenting in part.
I agree with the majority to the extent that the decision below be quashed
based upon reliance on Miami-Dade County v. Rodriguez, 67 So. 3d 1213 (Fla. 3d
DCA 2011). However, I dissent with regard to the retroactive application of a
significant Court opinion directed rule change.
Application for Review of the Decision of the District Court of Appeal - Direct
Conflict of Decisions
First District - Case No. 1D12-3415
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(Walton County)
Steven Brownlow Bauman and Jeffrey Leonard Burns of Anchors Smith Grimsley,
Fort Walton Beach, Florida,
for Petitioner
Scott J. Seagle and Gwendolyn Palmer Adkins of Coppins Monroe Adkins &
Dincman, P.A., Tallahassee, Florida,
for Respondent
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