City of Sweetwater v. Pichardo, 3D21-1199

CourtCourt of Appeal of Florida (US)
Writing for the CourtLOGUE, J.
PartiesCity of Sweetwater, Appellant, v. Richard Pichardo, Appellee.
Docket Number3D21-1199
Decision Date24 November 2021

City of Sweetwater, Appellant,

Richard Pichardo, Appellee.

No. 3D21-1199

Florida Court of Appeals, Third District

November 24, 2021

Not final until disposition of timely filed motion for rehearing.

An Appeal from a non-final order from the Circuit Court for Miami-Dade County, Lower Tribunal No. 15-21793 Pedro P. Echarte, Jr., Judge.

Johnson, Anselmo, Murdoch, Burke, Piper & Hochman, P.A., and Michael R. Piper (Fort Lauderdale), for appellant.

Mesa Litigation &Legal Consulting, P.A., and Carlos A. Mesa, for appellee.




The City of Sweetwater appeals a nonfinal order denying its motion for summary judgment based on sovereign immunity.[1] Because the City owed no duty of care under the facts of this case, we reverse and remand for the trial court to grant the City's motion for summary judgment.


The factual and procedural background is summarized from a prior appeal of this case:

The City hired appellee Pichardo as a police officer. After he started employment, the City's Mayor allegedly told Pichardo that he had been promoted to Lieutenant. About fifteen months later, the police chief sought to terminate Pichardo. Pichardo asked for the opportunity to resign instead. He was allowed to resign. After he left the City's employ, Pichardo reviewed his personnel file. He alleges that only then did he learn he had not been promoted to Lieutenant. Instead, his file revealed he was a full-time police officer with the rank of acting Lieutenant
In 2015, Pichardo filed a complaint for negligent misrepresentation in the circuit court, alleging that, but for the Mayor's misinformation, Pichardo would not have resigned; instead, he would have taken advantage of a police officer's procedural protections under the City's collective bargaining
agreement and Florida statutes as to his termination. These protections, allegedly, were not available to one with the rank of Lieutenant, but were available to one with the rank of acting Lieutenant.
The operative complaint is the third amended complaint. The City moved to dismiss it on the ground that the City owed no tort duty to Pichardo. The motion came before the trial court for hearing on July 29, 2020, and on the same day, the trial court entered the challenged order denying the City's motion. While the City's motion did not assert entitlement to sovereign immunity, the trial court's otherwise unelaborated order denying the City's motion included the following sentence: "Defendant is not entitled to sovereign immunity as a matter of law."

Pichardo, 314 So.3d at 541-42.

We dismissed the City's prior appeal from that order because the City's motion to dismiss did not assert its entitlement to sovereign immunity in order to confer jurisdiction upon this court under the amended rule of appellate procedure. Fla. R. App. P. 9.130(a)(3)(F)(iii). The City then filed a motion for summary judgment asserting that it owed no duty of care to Pichardo and that it was otherwise entitled to sovereign immunity from suit. The trial court denied the City's motion finding that a common law duty of care exists, and that the City was not immune from suit by virtue of the limited waiver of sovereign immunity under section 768.28, Florida Statutes. The City timely appealed from that order.



"A duty of care is 'a minimal threshold legal requirement for opening the courthouse doors.'" Wallace v. Dean, 3 So.3d 1035, 1046 (Fla. 2009) (quoting McCain v. Fla. Power Corp., 593 So.2d 500, 502 (Fla. 1992)). "The existence of a legal duty is a question of law for determination by the court, and we review de novo the trial court's rulings on that issue." Kamal-Hashmat v. Loews Mia. Beach Hotel Operating Co., 300 So.3d 270, 272 (Fla. 3d DCA 2019) (citing McCain, 593 So.2d at 502).

We have previously stated that "[w]hile the non-existence of a legal duty may, in certain cases, be related to whether a municipality enjoys sovereign immunity from a particular claim, the two concepts are distinct." Pichardo, 314 So.3d at 542; see also Sanchez v. Miami-Dade Cnty., 286 So.3d 191, 192 (Fla....

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