City of Freeport, Florida (the "City") petitions for a writ of certiorari to review a non-final order denying the City's motion to dismiss a negligence action brought against it in circuit court by Beach Community Bank (the "Bank"). Because we conclude that the City has sovereign immunity from suit, we grant the petition.
I. Factual Allegations
In March 2006, the City issued a development order to Riverwalk Freeport, LLC, a developer of real estate within the city limits. The name of the proposed residential development at issue is Riverwalk Phase I. Article 2, section 2.01.05(I)(2)(d) of the City's Land Development Code (LDC) expressly provides that a final development order may require a developer to post bond equal to 110% of the costs of the services or facilities that a developer is required to construct for the benefit of the project, as security to ensure completion of the infrastructure. Article 2, section 2.01.05(N)(3)(a) of the LDC states: "The amount of the security listed in the improvement agreement shall be approved as adequate by the Code Enforcement Officer." In the instant case, security could be fully satisfied in several ways, including the developer's posting an irrevocable letter of credit with the City. In compliance with the LDC, the developer provided the City with an irrevocable standby letter of credit loan in the amount of approximately $4.87 million from DC Capital DC Banking Group (DC Capital) in July 2007. The City Planner wrote the developer that the "surety [was] acceptable to the City."
In June 2008, nearly a year after the City approved the Riverwalk project for development, the Bank made a $2.4 million loan to the developer. The Bank secured this loan with a mortgage against twenty of the platted lots in the Riverwalk subdivision. The developer failed to complete the infrastructure and, in 2009, Petitioner attempted to collect on the security. The DC Capital letter of credit ultimately proved to be fraudulent and/or uncollectable.
Thereafter, the Bank sued the City, alleging that the City had breached its duty to 1) ensure that the developer posted adequate security for completion of the infrastructure, 2) conduct a reasonable investigation to ascertain the authenticity and adequacy of the letter of credit, and 3) determine whether DC Capital was a legitimate business enterprise and, if so, was financially able to pay the letter of credit if it was called.
The City moved to dismiss the complaint for failure to state a cause of action on the grounds that the City owed the Bank no common-law, statutory, or special duty of
II. Jurisdictional Analysis
Article V, section 4(b)(3) of the Florida Constitution, provides that district courts of appeal have original jurisdiction to issue writs of certiorari. See also Fla. R.App.P. 9.030(b)(2)(A). "Certiorari is the proper remedy, in limited circumstances, to review a non-final order that is not subject to appeal under Florida Rule of Appellate Procedure 9.130." AVCO Corp. v. Neff, 30 So.3d 597, 601 (Fla. 1st DCA 2010). The authority of the district courts to issue writs "functions as a safety net and gives the upper court the prerogative to reach down and halt a miscarriage of justice where no other remedy exists." Broward Cnty. v. G.B.V. Int'l, Ltd., 787 So.2d 838, 842 (Fla.2001). Certiorari review is not a mechanism for piecemeal appellate review as a matter of right; instead, it is triggered on a case-by-case basis, upon a showing by petitioner that the order under review (1) constitutes a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the case, (3) that cannot be remedied on post judgment appeal. Williams v. Oken, 62 So.3d 1129, 1132 (Fla.2011). Because the last two elements are jurisdictional, we must analyze them first. Id.
Sovereign immunity, which is the basis for the City's motion to dismiss, derives exclusively from the separation of powers provision found in article II, section 3 of the Florida Constitution.
The erroneous denial of sovereign immunity has been held to be a material, irreparable injury to justify certiorari review. See Miami-Dade Cnty. v. Rodriguez, 67 So.3d 1213, 1219 (Fla. 3d DCA 2011), rev. granted, 76 So.3d 938 (Fla. Dec. 1, 2011).
The Bank argues that the Florida Supreme Court's decision in Department of Education v. Roe, 679 So.2d 756 (Fla. 1996), precludes all avenues of interlocutory review of a non-final order denying sovereign immunity. On this point, we agree with the Third District Court of Appeal that Roe is inapplicable to discretionary review by certiorari where immunity is based on the separation of powers doctrine:
Rodriguez, 67 So.3d at 1220-21 (some internal citations omitted). The instant case is also distinguishable from this Court's decisions denying certiorari review in Citizens Property Insurance Corp. v. San Perdido Association, Inc., 46 So.3d 1051, 1053 (Fla. 1st DCA 2010) (involving a claim of immunity pursuant to section 627.351(6)(s)1., Florida Statutes), approved by Citizens Property Insurance Corp. v. San Perdido Association, Inc., 104 So.3d 344 (Fla.2012), and Keck v. Eminisor, 46 So.3d 1065 (Fla. 1st DCA 2010) (involving a claim of immunity from personal liability pursuant to section 768.28(9)(a), Florida Statutes), quashed in part by Keck v. Eminisor, 104 So.3d 359 (Fla.2012) (concluding that a claim of immunity under section 768.28(9)(a), Florida Statutes, should be reviewable by a non-final appeal and declining to address the issue of whether a writ of certiorari would be an alternative avenue). Both of those cases involved the interpretation of limited, statutory grants of immunity; neither of them involved the application of traditional sovereign immunity like that claimed by the City in this case. The governmental immunity at issue here "derives entirely from the doctrine of separation of powers, not from [the absence of] a duty of care or from any statutory basis."
Because the City claims immunity from suit, and the effect of the challenged order requires the City to submit to litigation beyond such time as its immunity can be properly determined, we conclude that the City has established the requisite material, irreparable harm necessary to invoke our certiorari jurisdiction.
III. Merits Analysis of Sovereign Immunity Claim
Having satisfied the jurisdiction threshold, the City next must establish that the challenged order departed from the essential requirements of law. When the record conclusively demonstrates an entitlement to sovereign immunity, a trial court departs from the essential requirements of law when it denies a motion to dismiss on that basis. In reviewing an order on a motion to dismiss, we assume the truth of all well-pled factual allegations
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 at 924. "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, 3 So.3d at 1044 (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 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. See City of Delray Beach v. St. Juste, 989 So.2d 655, 655-57 (Fla. 4th DCA 2008) (concluding that, given the government's limited funds and space to impound animals, the decisions of the city's animal-control officer and the police not to impound certain unfenced dogs that were the subject of complaints were discretionary functions for which the city enjoyed immunity); Dep't of Corr. v. Grubbs, 884 So.2d 1147-48
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.
If sovereign immunity is to be meaningful — and if we are to respect the fundamental tenets of the separation of powers — the City is entitled to certiorari review to determine whether it is immune from suit. Because the Bank's allegations of negligence concerned a discretionary, planning-level policy decision of the sovereign, we conclude that such immunity exists and the circuit court departed from the essential requirements of law in denying the motion to dismiss. For these reasons, we exercise our jurisdiction to preclude further trial proceedings against the City.
Petition granted; order quashed.
PADOVANO and ROWE, JJ., concur.
Wallace, 3 So.3d at 1044 (internal citations and footnotes omitted).