First DCA
Emerald Coast Utilities Authority v. Thomas Home Corp.
1st DCA
4/12/23, Judge M.K. Thomas
Topics: Sovereign Immunity (Florida)
Thomas Home Corporation (“THC”) sued the Emerald Coast Utilities Authority (“ECUA”) for allegedly misrepresenting the capacity of a sewer lift station. The ECUA is a governmental agency tasked with regulating water, wastewater, and sanitation in Escambia County. It is an independent special district created by the Florida Legislature.
THC relied on representations from the ECUA when it bought property with plans to develop it. After THC bought the property and applied for a sewer permit, the ECUA denied the permit based on a lack of capacity. They literally said they were not taking crap from THC. THC sued for $10 million in damages, presumably because its plans to build a housing development have gone down the drain.
ECUA moved for partial summary judgment based on the limited wavier of sovereign immunity under section 768.28(5), which caps liability at $200,000 “per person.” ECUA also alleged affirmative defenses that it had no duty to provide factually accurate information to THC about its lift stations. It argued that determinations of the necessary safety margins were discretionary decisions for governing for which they could not be held liable.
THC argued that the Legislature had not specifically designated ECUA as sovereign. Even if it was sovereign, the actions here were operational, not discretionary. And if it was an agency, it must also be covered by Chapter 120, Florida Statutes, the Administrative Procedure Act. It had denied it was covered by the APA, so should be estopped from declaring it was an agency.
The trial judge denied ECUA’s motion for partial summary judgment. ECUA then appealed the nonfinal order denying the partial summary judgment on sovereign immunity grounds.
The first question: is this really an order ruling on sovereign immunity? Does the DCA have jurisdiction? This was a matter of first impression in the First DCA, and the answer is, “Yes.” Even though it’s only a damage cap, not a motion to dismiss, because the damage cap is premised on sovereign immunity, the rule allowing interlocutory appeals for denied sovereign immunity claims does apply.
On the merits, the DCA reviewed the claim of sovereign immunity de novo. But the facts were not sufficiently developed below to justify summary judgment, so it affirmed the trial court’s denial of summary judgment.
JUDGE LONG CONCURRED SPECIALLY, writing that ECUA’ s motion had two parts (the claim that it was entitled to sovereign immunity and the claim about the $200,000 per person cap). He agreed that there was insufficient evidence below to determine whether the ECUA is or is not a sovereign entity. He also agreed with Chief Judge Rowe that the liability caps will attach automatically if it proves its case. But the whole question of whether ECUA is a sovereign entity should be resolved pre-judgment.
CHIEF JUDGE ROWE CONCURRED SPECIALLY, writing, that ECUA was not entitled to pretrial judicial declaration on the application of the statutory damages cap. She writes that the caps can only be imposed after a verdict is rendered. She also writes that deciding the issue of the caps before a verdict ignores the fact that the legislature could pass a claims bill expanding the ECUA’s ability to pay higher amounts.
https://supremecourt.flcourts.gov/content/download/865893/opinion/download%3FdocumentV ersionID=ebaecc22-1b8a-4e1d-bdc9-9c46c37d895e
Terry P. Roberts
Terry@YourChampions.com
Director of Appellate Practice Fischer Redavid PLLC
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