Dept. of Transportation v. Sarnoff , 241 So. 3d 931 ( 2018 )

Third District Court of Appeal
State of Florida
Opinion filed March 7, 2018.
Not final until disposition of timely filed motion for rehearing.
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No. 3D17-2374
Lower Tribunal No. 17-17305
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Florida Department of Transportation, et al.,
Appellants,
vs.
Marc Sarnoff, etc., et al.,
Appellees.
An Appeal from a non-final order from the Circuit Court for Miami-Dade
County, Samantha Ruiz-Cohen, Judge.
Marc Peoples, Assistant General Counsel (Tallahassee), for appellants.
Solowsky & Allen, P.L., and Mason A. Pertnoy and Jay H. Solowsky, for
appellee Marc Sarnoff.
Before LAGOA, SALTER and LINDSEY, JJ.
SALTER, J.
The Florida Department of Transportation (“FDOT”) and Michael J. Dew
(in his official capacity as Secretary of FDOT)1 appeal an order denying FDOT’s
motion to dismiss a circuit court lawsuit for improper venue. The issue before us
is whether Florida’s common law “home venue privilege,” enjoyed by State
agencies including FDOT, is subject to a statutory exception2 applicable to certain
FDOT contracts. Based on the record before us and the analysis which follows, we
conclude that the statutory exception does not apply. We reverse the order denying
the motion to transfer venue to the Circuit Court for Leon County, and we remand
with direction to grant FDOT’s motion.
The 2013 Lawsuit and Dismissal
In 2013, Marc Sarnoff (then Chairman of the City of Miami Commission)
and Tomas Regalado (then Mayor of the City) filed a complaint and an amended
complaint against the FDOT requesting several types of equitable relief regarding
“FDOT’s commitment to build a ‘signature’ bridge as part of a planned renovation
of the I-395 corridor (the ‘I-395 Project’).” The plaintiffs and complaint sought
class representation as to those City residents affected by the I-395 Project. The
gravamen of the amended complaint was an alleged “bait and switch” by FDOT
whereby a “transformative Signature Bridge project to uplift and ameliorate a
long-blighted stretch of interstate” was to be replaced with a “‘plain-Jane’
segmental box bridge.”
1 We refer to both appellants collectively as “FDOT.”
2 § 337.19(1), Fla. Stat. (2017).
2
In the 2013 case, a class was never certified, and the only response to the
amended complaint by FDOT was a motion to abate for improper venue (seeking a
transfer of the case to the Second Judicial Circuit in Leon County, Florida, based
on Florida Rule of Civil Procedure 1.060(b) and the home venue privilege). Leon
County is the site of FDOT’s principal headquarters. FDOT’s venue motion was
never heard or decided in the 2013 case; instead, following discussions among
counsel and the parties, Commissioner Sarnoff, Mayor Regalado, and FDOT filed
a joint motion to dismiss the amended complaint, without prejudice, on the
grounds that “The parties have engaged in discussions about the design and
construction of a new I-395 ‘signature’ bridge and the parties are committed to
continued discussions regarding same.” (Emphasis provided).
The joint motion sought the trial court’s leave for the dismissal, based on the
plaintiffs’ plea for class representation in the amended complaint and plaintiffs’
counsel’s “implied fiduciary duties to the putative class.” The joint motion also
contained these provisions:
4. FDOT shall organize a committee (“Committee”)
consisting of five (5) individuals to be selected by mutual agreement of
Alice N. Bravo, P.E., City of Miami Assistant City Manager Chief of
Infrastructure and Gus Pego, P.E., FDOT District Secretary, District 6.
The role of the Committee is to serve as an advisor to FDOT.
5. On or before December 31, 2013, the Committee shall:
(a) Evaluate and recommend to FDOT, from among various
bridge concepts proposed by FDOT for the Project, the one that
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best fulfills the commitments made by FDOT as part of the
Project Environmental Impact Statement (“EIS”) and the
Record of Decision (“ROD”) issued by the Federal Highway
Administration.
(b) Provide input to FDOT on the selection criteria for teams
interested in submitting proposals for the Project.
(c) During the procurement of the Project, serve as an
aesthetic advisory group to FDOT.
6. The parties agree that the cost of the entire project shall
not exceed Six Hundred Million Dollars and NO/100
($600,000,000.00).
The trial court promptly entered an order granting the joint motion for
dismissal of the 2013 lawsuit, without prejudice. The form of order submitted to,
and signed by, the trial court recited that the court was “informed that the parties
are in agreement as to the relief requested in the Motion.” That order did not,
however, approve or ratify the terms of the joint motion as a settlement agreement,
nor did it retain jurisdiction to enforce the undertakings in paragraphs 4 to 6 of the
joint motion to dismiss (quoted above) regarding the advisory “Committee” or the
$600,000,000.00 not-to-exceed cost of the bridge project.
Three and one-half years transpired, during which the aesthetic advisory
committee apparently contemplated in the joint motion was formed and met to
consider possible design concepts and public input. In May 2017, FDOT
announced its intention to award the I-395 project to a joint venture. The
following month, Mr. Sarnoff (by then a former City Commissioner) filed a motion
4
to re-open the 2013 case, to drop former Mayor Regalado as a party plaintiff, and
to obtain relief for FDOT’s alleged breach of its purported 2013 settlement
agreement evidenced by the joint motion and based on subsequent activities by the
advisory committee.
On July 17, 2017, the trial court denied Mr. Sarnoff’s motion to re-open the
2013 case, noting that it had not retained jurisdiction over the matter. Two days
later, Mr. Sarnoff filed a new complaint and demand for jury trial, again seeking
certification of a class of similarly-situated residents of the City of Miami. In the
2017 lawsuit, Mr. Sarnoff alleged that FDOT and the plaintiffs in the 2013 lawsuit
had reached a “settlement agreement,” that the trial court had approved that
settlement agreement, and that FDOT had then breached it.
As it had in the 2013 lawsuit, FDOT filed a motion to dismiss the 2017
complaint for improper venue, again invoking Florida’s home venue privilege.
The trial court denied FDOT’s motion, and this appeal followed.3
Analysis
Florida’s home venue privilege is based on decisional rather than statutory
law. It dates back to the Supreme Court of Florida’s decision in Smith v.
Williams, 35 So. 2d 844 (Fla. 1948). Fla. Dep’t of Children & Families v. Sun-
Sentinel, Inc., 865 So. 2d 1278, 1287 (Fla. 2004); see also Carlile v. Game & Fresh
3 We have jurisdiction to review the order under Florida Rule of Appellate
Procedure 9.130(a)(3)(A).
5
Water Fish Comm'n, 354 So. 2d 362, 363-64 (Fla. 1977) (“It has long been the
established common law of Florida that venue in civil actions brought against the
state or one of its agencies or subdivisions, absent waiver or exception, properly
lies in the county where the state, agency, or subdivision, maintains its principal
headquarters.”).
The State and its agencies are entitled to this privilege unless: “(1) it is
inapplicable, based upon an exception recognized by the Florida Supreme Court or
by statute; or (2) it has been waived.” Castle Beach Club Condo., Inc. v. Citizens
Prop. Ins. Corp., 96 So. 3d 964, 966 (Fla. 3d DCA 2012) (citing Fla. Dep’t of
Children & Families, 865 So. 2d at 1287-89). The Supreme Court of Florida has
recognized four exceptions to the home venue privilege: (1) where the Florida
Legislature waives the privilege by statute; (2) the sword-wielder exception; (3)
where a governmental defendant is sued as a joint tortfeasor; and (4) where a party
petitions the court for an order to gain access to public records. Fla. Dep’t of
Children & Families, 865 So. 2d at 1287-89. In this case, Mr. Sarnoff claims
FDOT may not invoke the home venue privilege because of a statutory waiver.
Mr. Sarnoff’s arguments are: (1) the 2013 joint motion to dismiss, the order
on that motion, and an “I-395 Steering Committee Charter” collectively constituted
a written settlement agreement; (2) communications between FDOT and others
corroborate the existence of such an agreement; (3) FDOT partly performed under
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the purported settlement agreement; and (4) section 337.19(1), Florida Statutes
(2017), permits local lawsuits against FDOT for breach of contract when the claim
arises from “breach of an express provision or an implied covenant of a written
agreement or written directive issued by the department pursuant to the written
agreement.” These arguments fail. We address them as two basic inquiries. First,
did the parties enter into an enforceable written settlement agreement in 2013 as
part of the dismissal of the earlier lawsuit? Second, are the documents relied upon
by Mr. Sarnoff public contracts subject to chapter 337, including that chapter’s
statutory waiver of FDOT’s home venue privilege in section 337.19(1)?
“Settlement Agreement”
“Settlement agreements are to be interpreted by and are governed by the
same principles of law interpreting and governing contracts.” Gaines v. Nortrust
Realty Mgmt., Inc., 422 So. 2d 1037, 1039 (Fla. 3d DCA 1982). A settlement
agreement must be sufficiently specific as to be capable of implementation and
will not be enforceable if “too vague or ambiguous in its meaning or effect.” Id.The parties “must reach mutual agreement on every essential element of the
proposed settlement.” Id. at 1040.
The joint motion for dismissal of the 2013 lawsuit asked the trial court to
approve the dismissal of the 2013 lawsuit (still in its nascent stages) without
prejudice, not to approve a settlement agreement. The use of the term “without
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prejudice” signifies that the lawsuit might be re-filed at a later time. The trial court
was not asked to confirm or ratify any terms, nor did it retain jurisdiction in the
order of dismissal to enforce any agreement.4
Paragraphs 4 through 6 of the joint motion are quoted verbatim earlier in this
opinion. Paragraph 4 provides for the organization by FDOT of a committee of
five non-party individuals to be selected by three other designated individuals (one
of whom was a regional FDOT secretary) “to serve as an advisor to FDOT.” An
agreement to receive advice, it hardly needs to be said, is not an obligation to
accept, or perform in accordance with, that advice.
Paragraph 5 of the joint motion required the five-person advisory
committee: to evaluate and recommend to FDOT, by December 31, 2013, the
bridge concept that best fulfills the commitments made by FDOT as part of its
environmental impact statement and a record of decision by the Federal Highway
Administration; to “provide input” to FDOT on selection criteria for teams
submitting bridge proposals; and to “serve as an aesthetic advisory group to
FDOT.” If the committee made such an evaluation and recommendation, there is
no imposition of an obligation on the part of FDOT to accept or follow it. In
approving dismissal of the 2013 lawsuit, the trial court did not agree to take
4 As already noted, the trial court in the 2013 lawsuit denied Mr. Sarnoff’s motion
to re-open the case for further proceedings in 2017.
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jurisdiction over the to-be-formed committee, much less to enforce the
committee’s role of providing advice.
Finally, the agreement by the parties that the cost of the project would not
exceed $600,000,000.00 is not based on any budget or other document identifying
“the project” in sufficient detail to be enforceable. Paragraph 3 of the joint motion
made it clear that the parties were still engaged in discussions regarding “the
design and construction of a new I-395 ‘signature’ bridge,” and the actual
procurement process was not yet underway.
Turning to the other writings contended to be part of a “settlement
agreement,” only two warrant discussion. The first is an unsigned, undated “I-395
Steering Committee Charter.” This five-paragraph, two-page document designates
the five members of the I-395 Steering Committee and generally describes the
Committee’s mission as evaluating bridge concepts proposed by FDOT,
emphasizing three project goals: maximizing aesthetic value; elevating the
highway to the maximum extent possible to improve natural lighting to the areas
beneath the highway; and reconnecting streets within the Overtown Community.
The I-395 Steering Committee was to “help establish selection criteria for the
teams pursuing a Design-Build-Finance (DBF) project to implement the I-395
Project.” During the procurement and bid process, the Committee was to serve as
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the “Aesthetic Advisory Group” to report (with another group, the Technical
Advisory Group) to the Selection Committee.
The second document warranting discussion is a letter from the District
Secretary for FDOT for the region including Miami-Dade County, Jim Wolfe, P.E.
In May 2017, Mr. Wolfe wrote the Mayor and a Commissioner of Miami-Dade
County a letter regarding the status of the “I-395 Reconstruction Project.”
Excerpts from the letter are relied upon by Mr. Sarnoff as corroboration that an
enforceable settlement agreement emanated from the 2013 lawsuit and dismissal:
The Department has committed to providing the citizens of Miami a
project that will be transformative to the community.
***
As previously agreed between the Department and the City of
Miami, the process of selecting a bridge concept and the vendor
included the input of an aesthetic advisory committee selected by joint
agreement of a representative of the City and a representative of the
Department, to provide an additional mechanism for local input into
the project process.5
***
In addition to the extensive public outreach conducted by the
Department, the Department actually afforded the advisory committee
greater participation in the procurement process than was strictly
required under the terms of its agreement with the City. The
Department’s procurement process fully complied with both the letter
and the spirit of its agreement with the City and with applicable
State law.
(Emphasis provided).
5 Mr. Wolfe’s letter noted that the aesthetic advisory committee held public
meetings on nine dates from February 2014 through September 2015.
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FDOT’s agreement to appoint a committee and receive advice regarding
aesthetics is not (without more) an enforceable settlement agreement, and in
approving dismissal of the 2013 lawsuit, the trial court never suggested that the
terms in the joint motion were a settlement agreement. Collectively, the
documents relied upon by Mr. Sarnoff demonstrate that FDOT agreed to receive
input, not from Mr. Sarnoff, but from non-parties residing and working in the
County in which the project-in-process was to be located. They do not establish a
meeting of the minds of the parties with specific, enforceable terms, as required
under Gaines and the cases cited in that opinion.6
Statutory Waiver; Section 337.19
Section 337.19, captioned “Suits by and against department; limitation of
actions; forum,” unquestionably establishes an exception to Florida’s home venue
privilege. Contract claims by or against FDOT and based on a “written agreement
or written directive issued by the department” (subparagraph (1)) may be filed and
prosecuted “in the county or counties where the cause of action accrued, or in the
county of the department’s district headquarters responsible for the work, or in
Leon County” (subparagraph (3)). Mr. Sarnoff contends that the purported
settlement agreement could be filed in Miami-Dade County based on the location
6 Gaines is still good law relating to settlement agreements and the enforceability
of such agreements, and is still regularly cited in District Court and federal
opinions throughout Florida. See, e.g., Miller v. U.S. Sec. Assocs., Inc., 2017 WL
3337066, at *2 (S.D. Fla. Aug. 4, 2017).
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of the district headquarters and the County where the claim for breach of the
agreement arose.
If we agreed with Mr. Sarnoff’s contention that the joint motion to dismiss
and other documents constituted a written, enforceable settlement agreement
(which we do not), we would nonetheless disagree that the agreement could be
enforced in Miami-Dade County. The statutory waiver of FDOT’s home venue
privilege must be considered in light of the kinds of agreements and directives that
are subject to the waiver.
Chapter 337 addresses the administration of public contracts for State
transportation projects. The provisions of the chapter include requirements for
competitive bidding, the purchase and sale of property, the acquisition of necessary
aggregate materials for construction, the development and retention of vendors and
professional services providers, and other aspects of building and maintaining
transportation infrastructure.
Importantly, section 337.19(1) addresses actions by and against FDOT and a
“contractor:” “In any such suit, the department and the contractor shall have all of
the same rights and obligations as a private person under a like contract except that
no liability may be based on an oral modification of either the written contract or
written directive.” In context, it is apparent that the statutory waiver applies to
actions by and against FDOT under signed, authorized contracts with a
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“contractor” for construction of a transportation-related project (or the delivery of
goods or services related to that construction).
On the record before us, Mr. Sarnoff was not and is not such a “contractor”
with respect to the I-395 highway project. The only “settlements” addressed in
Chapter 337 are addressed in section 337.221, “Claims settlement process.” Those
settlements pertain to “contractual claims between the department and providers of
goods and services” and the “recovery of additional costs resulting from
substandard goods and services provided to the department.” A transportation
contractor may assert a claim against FDOT, or FDOT may assert a claim against
such a contractor, arising under an authorized public construction contract. A
purported settlement agreement whereby FDOT agrees to consider input from
community leaders and infrastructure planning professionals (on an unpaid basis)
as procurement and authorization of actual design and construction contracts are
underway does not resemble a complete, written contract procured and signed
under the strictures of the public contracts statutes applicable to FDOT.
The limited waiver available to contractors under section 337.19 is
inapplicable to the joint motion to dismiss the 2013 lawsuit and other documents
contended by Mr. Sarnoff to comprise a contract with FDOT.
Conclusion
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There is no question that Mr. Sarnoff and his counsel were civic-minded7
and sought to impress upon FDOT’s district office the importance of local advice
and input relating to an important local transportation project. The trial court
recognized that and duly noted, in the hearing on FDOT’s motion, the language of
section 337.19 allowing a contract claim against FDOT to be “brought in the
county where the cause of action accrued.”
We are constrained, however, to carefully review the details of the purported
“contract” or “settlement agreement,” as well as the limitations on the statutory
waiver in section 337.19. After doing so, we reverse the order denying FDOT’s
motion to dismiss for improper venue and remand the case to the trial court to
grant the motion.
Reversed and remanded.
7 In the joint motion to dismiss the 2013 lawsuit, for example, counsel for Mr.
Sarnoff represented that his firm was representing the plaintiffs without charge.
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