Filed: Aug. 07, 2019
Latest Update: Mar. 03, 2020
Summary: 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; EL
Summary: 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; ELV..
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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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