NELSON P. SCHWOB v. JAMES C. GOSS

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT

NELSON P. and BARBARA J. SCHWOB; )
DARRELL L. and MARTHA K. BIRT; )
FRANK E. and LINDA J. BROWN; PAUL )
and SANDRA BROWN; DENNIS M. and )
CAROL J. COSMO; MARILYN C. )
MORSE; STEVEN P. and LAURIE A. )
CUMMINGS; KAROL FLEMING; )
SOLANGE GERVAIS; BERND J. and )
OPAL B. GIERSCHKE; CHARLES H. Sr. )
and CAROL L. LePAGE; JAMES L. and )
REBECCA L. MAY; LORI OFFER; ELVIRA )
PARDO; JAMES A. and JOYCE A. )
PASCO; DAVID L. and KAY J. SMITH; )
JAMES L. and FRANCES E. SMITH; )
JAMES E. and MARGO M. SYMONDS; )
JEANETTE M. TATRO; RICHARD and )
ARLENE TAYLOR; ANTHONY A. )
VARSALONE, JR.; and KATHLEEN R. )
VALK, )
)
Petitioners, )
)
v. ) Case No. 2D18-4480
)
JAMES C. GOSS; EDWARD HEVERAN; )
MARGARET E. HEVERAN; and PALM )
TREE ACRES MOBILE HOME PARK, )
)
Respondents. )
)

Opinion filed August 7, 2019.

Petition for Writ of Certiorari to the Circuit
Court for Pasco County; Gregory G.
Groger, Judge.
Richard A. Harrison and Daniela N. Leavitt
of Richard A. Harrison, P.A., Tampa, for
Petitioners.

Jody B. Gabel and J. Allen Bobo of
Lutz, Bobo & Telfair, P.A., Sarasota,
for Respondents.

CASANUEVA, Judge.

The Petitioners own individual lots located in the Palm Tree Acres Mobile

Home Park. The Respondents own and operate Palm Tree Acres, and they own and

lease most of the remaining lots in the park. Historically, the Respondents have

provided water and sewer service and access to recreational amenities to all residents

of Palm Tree Acres for an all-inclusive monthly fee. The current litigation began after

one of the Petitioners unsuccessfully sought to unbundle this monthly fee and to pay for

only the water and sewer service. The Respondents countered that they have no

obligation to provide any services to the Petitioners. The issue currently before this

court is whether the circuit court erred in granting partial summary judgment in favor of

the Respondents after finding that they have a constitutional right to discontinue water

and sewer service to the Petitioners. The Petitioners filed this petition for writ of

certiorari challenging the circuit court's order. We agree with the Petitioners that the

circuit court's order departs from the essential requirements of the law and results in

material injury to them for the remainder of the case that cannot be corrected on

postjudgment appeal, and we quash the order.

I. Circuit Court Proceedings

In the Petitioners' third amended complaint, they assert 180 counts,

including claims for declaratory relief and injunctive relief which allege that the

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Petitioners are in doubt as to their legal and financial obligations to the Respondents

and as to the legal rights of the Respondents to demand, charge, and collect payment

of monthly fees. The Petitioners allege in the complaint that they purchased their lots in

reliance upon the Respondents' representations and commitment to furnish potable

water to their lots. They further allege that the Respondents have supplied and

continue to supply potable water to the Petitioners by means of a water supply system,

pumps, pipes, and connections that are owned and operated by the Respondents and

that there is no other public supply of potable water available to the Petitioners.

The Petitioners state that they are willing to pay for such services, but the

Respondents have failed and refused to provide them with any detailed accounting of

the actual costs of the services and have threatened to terminate the services. The

Petitioners asked the circuit court to enter a judgment finding, determining, and

declaring the rights and duties of the parties with respect to the potable water supply

and the amounts that the Petitioners can be charged for such water supply. They

acknowledge that there is no written agreement between the parties with respect to the

Petitioners' properties.

The Respondents filed a motion to dismiss the third amended complaint,

arguing that the complaint's demand that the circuit court order the Respondents to

provide utility services to the Petitioners and set the rates for those utility services is

within the exclusive jurisdiction of the Florida Public Service Commission (PSC). The

circuit court issued an order granting in part and denying in part the Respondents'

motion to dismiss, finding that the determination regarding whether the Respondents

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must provide water and sewer service to the Petitioners, and the rate that can be

charged for such service, was within the jurisdiction of the PSC.1

Thereafter, the Respondents filed their answer, affirmative defenses, and

counterclaims. In count one of the counterclaim, the Respondents sought a declaratory

judgment that they are entitled to a full bundle of ownership rights that are guaranteed

by article I, section 2, of the Florida Constitution. The Respondents filed a motion for

partial summary judgment asking the circuit court to grant judgment in their favor on this

counterclaim, arguing that only the circuit court has jurisdiction to determine this

constitutional claim and that the PSC lacks jurisdiction to do so. The Petitioners filed an

answer and affirmative defenses to the counterclaim alleging, among other grounds,

that the PSC had exclusive jurisdiction over this issue.

The circuit court agreed with the Respondents' arguments and granted

their motion for partial summary judgment. The court reasoned that the Respondents

have a constitutional right to discontinue water and sewer service to the Petitioners.2

The order states:

Property rights are one the most basic rights protected by
both the Florida and United States Constitutions. These
rights include the ability to use, and not to use, the property
as the owner of the property sees fit. The government may
impose regulations on how a property is used, and

1The court also found that the PSC had jurisdiction to resolve the question
of whether the Respondents can claim the "landlord-tenant" exemption under section
367.022(5), Florida Statutes (2014).
2Although the circuit court cited article I, section 3, of the Florida
Constitution, which involves religious freedom, it intended to cite article I, section 2,
which states, "All natural persons, female and male alike, are equal before the law and
have inalienable rights, among which are the right to enjoy and defend life and liberty, to
pursue happiness, to be rewarded for industry, and to acquire, possess and protect
property."

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 neighboring property owners can seek to enjoin their
neighbors from offensive or nuisance use of property.
However, the Court is unaware of, and the Plaintiffs have not
provided, any authority that the Court can compel a property
owner to use its property in a manner solely for the benefit of
a neighboring property owner.

II. Certiorari Standard of Review

This court's standard of review in a certiorari proceeding is limited to

determining whether the circuit court's order is: "(1) a departure from the essential

requirements of the law, (2) resulting in material injury for the remainder of the trial (3)

that cannot be corrected on postjudgment appeal." Kelly v. Philip Morris USA Inc., 69

So. 3d 1078, 1079 (Fla. 2d DCA 2011) (quoting Parkway Bank v. Fort Myers Armature

Works, Inc., 658 So. 2d 646, 648 (Fla. 2d DCA 1995)). A petition for writ of certiorari

may be filed to challenge a circuit court's ruling in a declaratory action. See Star Ins.

Co. v. Dominguez, 141 So. 3d 690, 693 (Fla. 2d DCA 2014) ("The circuit court's order

denying [the petitioner's] motion to dismiss the declaratory judgment action brought

against it by [the respondent] constitutes a departure from the essential requirements of

the law causing irreparable harm to [the petitioner] that cannot be remedied on

appeal.").

We conclude that the circuit court's order is a departure from the essential

requirements of the law. As the circuit court had recognized in a previous order, the

PSC has exclusive jurisdiction over disputes involving utility services, including the

termination of such services. Further, the termination of utility services would cause a

material injury to the Petitioners that cannot be remedied on appeal of a final judgment.

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 III. Jurisdiction of the Florida Public Service Commission

Section 367.011(2), Florida Statutes (2014), states that "[t]he Florida

Public Service Commission shall have exclusive jurisdiction over each utility with

respect to its authority, service, and rates." "Utility" is defined as "a water or wastewater

utility and, except as provided in s. 367.022, includes every person, lessee, trustee, or

receiver owning, operating, managing, or controlling a system, or proposing

construction of a system, who is providing, or proposes to provide, water or wastewater

service to the public for compensation." § 367.021(12); see also Utils., Inc. of Fla. v.

Corso, 846 So. 2d 1159, 1161 (Fla. 5th DCA 2003) ("[T]he issue here [is] a dispute

between the parties relating to the rates and charges for water and wastewater utility

services which dispute is within the exclusive jurisdiction of the PSC.").

The circuit court's ruling that the Respondents have a constitutional right

to terminate water and sewer service to the Petitioners is in conflict with section

367.011(2), which gives the PSC exclusive jurisdiction over each utility with respect to

the services provided by the utility. See also § 367.165 ("It is the intent of the

Legislature that water or wastewater service to the customers of a utility not be

interrupted by the abandonment or placement into receivership of the utility.").

Although there do not appear to be any cases specifically on point, in

Board of County Commissioners Indian River County v. Graham, 191 So. 3d 890 (Fla.

2016), the Florida Supreme Court addressed the jurisdiction of the PSC in relation to

the rights of a property owner. Id. at 895-96. In that case, there was a franchise

agreement between the city and the county, which gave the city the exclusive right to

use property owned by the county "to construct, maintain, and operate an electric

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system in unincorporated areas of the County." Id. at 892 (footnote omitted). The

county refused to renew the franchise agreement, and it filed with the PSC a petition for

declaratory statement asking for a declaration regarding its rights, responsibilities, and

duties when the franchise agreement expired. Id.

In a separate PSC proceeding, the city filed its own petition for declaratory

statement, alleging that the county's petition threatened to evict the city from providing

service in the city's previously PSC-approved service areas once the franchise

agreement expired. Id. at 893. The city asked the PSC to make the following two

declarations: 1) the expiration of the franchise agreement has no effect on the city's

obligation and right to provide utility service in previously approved territory; and 2) the

city is required to continue to provide utility service in such areas without regard to the

expiration of the franchise agreement. Id. The PSC ruled in favor of the city. Id.

The county argued on appeal that "the PSC erred in declaring that the City

has the right and obligation to continue to serve its PSC-approved territory . . . after its

franchise agreement with the County expires." Id. Pertinent to this appeal, the county

argued that "the PSC's declaration improperly strips the County of its property rights

and grants them to the City, unregulated and in perpetuity." Id. at 893-94. The Florida

Supreme Court did not agree with the county's argument and held as follows:

[W]e reject the County's argument that the PSC's order
improperly grants the County's property rights to the City.
Were we to hold otherwise, counties could do indirectly
through franchise agreements what the PSC's "exclusive
and superior" jurisdiction precludes them from doing directly.
§ 366.04(1), Fla. Stat. ("The jurisdiction conferred upon the
commission shall be exclusive and superior to that of all
other boards, agencies, political subdivisions, municipalities,
towns, villages, or counties, and, in case of conflict
therewith, all lawful acts, orders, rules, and regulations of the

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 commission shall in each instance prevail.") (emphasis
added).

Id. at 896-97.

In the present case, the Respondents argue that the PSC does not have

jurisdiction over issues related to the termination of the utility service because any order

requiring them to provide service would deprive them of their property rights, and the

circuit court has jurisdiction over this constitutional issue. We do not agree with the

Respondents that the PSC does not have jurisdiction in this case simply because they

own the land that is used to provide the utility service. If the Respondents had never

provided utility service to the Petitioners, then they likely could not be forced to use their

land to begin providing such service. However, the Respondents have been providing

utility service to the Petitioners' homes for decades. As such, the Respondents are a

provider of utility service pursuant to section 367.021(12), and the PSC has "exclusive

jurisdiction" over them "with respect to [the Respondents'] authority, service, and rates."

See § 367.011(2). The Respondents cannot claim that, because they own the land

used to provide these services, their constitutional rights related to the ownership of that

land divests the PSC of its jurisdiction. If the Respondents' argument were accepted,

then a utility provider that owns the property used to provide such services could

terminate those services and its actions would be outside the jurisdiction of the PSC;

the PSC's jurisdiction over such disputes would be illusory at best. This was clearly not

the intent of the legislature when it stated that the PSC has "exclusive jurisdiction over

each utility with respect to its . . . service." Id.

Accordingly, we grant the petition for writ of certiorari and quash that

portion of the partial summary judgment finding that the Respondents could terminate

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water and sewer service to the Petitioners. This determination is within the exclusive

jurisdiction of the PSC.

Petition for writ of certiorari granted.

KHOUZAM, C.J., and ATKINSON, J., Concur.

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