Legal Report, July 2019

General Counsel, Keith Davis

1.         City of Pembroke Pines v. Corr. Corp. of Am., 2019 Fla. App. LEXIS 8415, 44 Fla. L. Weekly D 1369, 2019 WL 2275021 (4th DCA 2019). Sovereign Immunity.
The City of Pembroke Pines (“City”) appealed from the circuit court's order denying its motion to dismiss, on sovereign immunity grounds, Corrections Corporation of America's counterclaim seeking non-contractual economic damages alleged in counts for declaratory judgment, promissory estoppel, tortious interference with contract, and tortious interference with an advantageous business relationship. The City argued that the sovereign immunity waiver codified in § 768.28, Florida Statutes, does not apply to these four counts.

On appeal, the Fourth District Court of Appeals agreed with the City, holding that a city was entitled the sovereign immunity waiver codified in § 768.28, Florida Statutes, in a counterclaim against it seeking non-contractual economic losses because the plain language of § 768.28's limited waiver of sovereign immunity did not apply to state law tort claims which were not based on injury or loss of property, personal injury, or death caused by the negligent or wrongful act or omission of any employee of the agency or subdivision while acting within the scope of the employee's office or employment.

2.         Matlacha Civic Ass'n v. City of Cape Coral, 2019 Fla. App. LEXIS 7898, 44 Fla. L. Weekly D 1338, 2019 WL 2203179 (2d DCA 2019). Annexation.
In 2012, the City of Cape Coral (“City”) purchased six parcels of land located on the eastern edge of the island community of Matlacha in unincorporated Lee County. In 2016, the City Council of Cape  Coral proposed Ordinance 57-16 to annex the property into the city limits of the City. The City used the "voluntary annexation" procedure pursuant to § 171.044, Florida Statutes, because it owned the parcels. When the City Council conducted a hearing on the proposed annexation, it was met with significant opposition. Hundreds of objecting citizens, including the Cape Coral and Matlacha petitioners, appeared at the hearing. Among the many objections raised was an assertion that under the annexation statute, it is improper for a municipality to purchase land outside its jurisdiction and then use the "voluntary annexation" procedure to annex those parcels into the city. Despite the objections, the City passed the ordinance.

The Matlacha petitioners and the Cape Coral petitioners filed a three-count action in the circuit court to challenge the annexation. The petitioners challenged the ordinance on three fronts: (1) Cape Coral's use of voluntary annexation was not permitted under the plain language of the annexation statute; (2) even so, the City had not met the requirements of the annexation statute; and (3) passage of the ordinance was not supported by competent substantial evidence. At issue here is the first count which sought certiorari review of the ordinance pursuant to § 171.081(1), Florida Statutes.

On appeal, the Second District Court of Appeals concluded that with respect to the Cape Coral petitioners, the circuit court departed from the essential requirements of law in determining they did not have standing to challenge an annexation ordinance passed by the City. Section 171.081(1), Florida Statutes, authorizes any "party affected who believes that he or she will suffer material injury by reason of the failure" of a municipality to comply with the statutory procedure for annexation to seek certiorari review of the annexation. The appellate court held that the trial court's conclusion that the petitioners had to allege a present material injury directly resulting from the annexation was contrary to the plain language of the statute and therefore a departure from the essential requirements of law.