Florida Department of Children and Families v. Sun-Sentinel, Inc.

• Decision Date: 05 February 2004
• Docket Number: No. SC03-410.,SC03-410.
• Citation: 865 So.2d 1278
• Parties: FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES, Petitioner, v. SUN-SENTINEL, INC., Respondent.
• Court: Florida Supreme Court

865 So.2d 1278

FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES, Petitioner, v. SUN-SENTINEL, INC., Respondent.

No. SC03-410.

Supreme Court of Florida.

February 5, 2004.

Charles J. Crist, Jr., Attorney General, Christopher M. Kise, Solicitor General, and Lynn C. Hearn, Deputy Solicitor General, Tallahassee, FL, for Petitioner.

John R. Hargrove and W. Kent Brown of Gordon Hargrove & James, P.A., Fort Lauderdale, FL; and David S. Bralow, Senior Counsel/Florida Media, Tribune Company, Orlando, FL, for Respondent.

Gregg D. Thomas and Rachel E. Fugate of Holland & Knight LLP, Tampa, FL; and George Freeman, The New York Times Company, New York, NY, for Amici Curiae The First Amendment Foundation; The Tampa Tribune; WFLA-TV News Channel 8; Orlando Sentinel Communications; New York Times Regional Newspapers on behalf of The (Lakeland) Ledger; Sarasota Herald-Tribune, (Ocala) Star Banner, and The Gainesville Sun; Florida Today; News-Press; Pensacola News Journal; WTLV-TV; WJXX-TV; and WTSP-TV.

BELL, J.

This case arises out of a petition filed by Sun-Sentinel pursuant to section 119.07(7)(a), Florida Statutes (2002), to gain access to certain public, but confidential, records maintained by the Department of Children and Families (DCF).¹ We must decide three issues: whether DCF waived its objection to the circuit court's personal jurisdiction when it simultaneously moved to transfer venue; whether Sun-Sentinel was required to serve DCF with the petition; and whether the circuit court erred in refusing to apply the home venue privilege.

The district court did not reach the merits of the service of process/personal jurisdiction issue because it held that DCF waived its objection by seeking a transfer of venue. Dep't of Children & Families v. Sun-Sentinel, Inc., 839 So.2d 790, 791 (Fla. 4th DCA 2003). The court also held that the circuit court did not err in refusing to apply the home venue privilege— even though none of the recognized exceptions to the privilege were satisfied—because "[n]one of the policies that motivated the adoption of the home [venue] privilege are present in this case." Id. at 792.

The district court's decision expressly and directly conflicts with Jacksonville Electric Authority v. Clay County Utility Authority, 802 So.2d 1190 (Fla. 1st DCA 2002), which held that trial courts are bound to apply the home venue privilege unless one of the three recognized exceptions is satisfied, regardless of whether application of the privilege in the particular case is supported by the policy reasons that justify the privilege.²

In part I of this opinion, we briefly discuss the factual and procedural history of the case. In part II, we hold that a motion to transfer venue, filed simultaneously with a timely asserted objection to personal jurisdiction, does not waive the jurisdictional objection. With respect to this issue, we disapprove the opinion below and the opinion in Hubbard v. Cazares, 413 So.2d 1192 (Fla. 2d DCA 1981). Because DCF did not waive its objection to the court's personal jurisdiction, we reach the merits of that issue. In part III, we hold that section 119.07(7)(a) requires formal service of process on DCF. Accordingly, the circuit court erred in denying DCF's motion to dismiss the petition for insufficient service of process and lack of personal jurisdiction. And in part IV, we approve the First District's holding in Jacksonville Electric that a trial court must apply the home venue privilege unless one of the recognized exceptions to the privilege is satisfied. However, we approve the result of the district court below because we now create a fourth exception to the home venue privilege. As we will discuss in greater detail below, this new exception is similar to the "joint tortfeasor" exception that we created in Board of County Commissioners v. Grice, 438 So.2d 392 (Fla.1983). Because this case falls within this new exception, the circuit court did not err in refusing to apply the home venue privilege.

I. BACKGROUND

The State brought criminal child neglect charges against Donald and Amy Hutton. The charges were brought in the Palm Beach County Circuit Court. While the criminal case was pending, Sun-Sentinel, seeking access to DCF records concerning the Huttons and their children, filed a section 119.07(7)(a) petition. Section 119.07(7)(a) provides that

[a]ny person or organization, including the Department of Children and Family Services, may petition the court for an order making public the records of the Department of Children and Family Services that pertain to investigations of alleged abuse, neglect, abandonment, or exploitation of a child or a vulnerable adult. The court shall determine if good cause exists for public access to the records sought or a portion thereof. In making this determination, the court shall balance the best interest of the vulnerable adult or child who is the focus of the investigation, and in the case of the child, the interest of that child's siblings, together with the privacy right of other persons identified in the reports against the public interest. The public interest in access to such records is reflected in s. 119.01(1),[³] and includes the need for citizens to know of and adequately evaluate the actions of the Department of Children and Family Services and the court system in providing vulnerable adults and children of this state with the protections enumerated in ss. 39.001 and 415.101.

§ 119.07(7)(a), Fla. Stat. (2002). Sun-Sentinel filed the petition in the Palm Beach County Circuit Court and faxed a copy of the petition to DCF.

DCF moved to dismiss the petition for insufficient service of process, lack of personal and subject matter jurisdiction, and failure to state a cause of action. DCF also invoked the "home venue privilege" and moved to dismiss the petition for improper venue or, in the alternative, to transfer the case to Leon County, the county in which DCF maintains its headquarters. The Palm Beach County Circuit Court denied DCF's motions. The court held that section 119.07(7)(a) does not require formal service of process. The court declined to apply the home venue privilege because the petition was not in the nature of a lawsuit against DCF.

The Fourth District Court of Appeal affirmed. First, the district court held that DCF waived its objection to the circuit court's personal jurisdiction by seeking to transfer venue to Leon County. Dep't of Children & Families, 839 So.2d at 791. Second, the district court held that the trial court did not err in refusing to apply the home venue privilege. Id. at 792.

II. WAIVER

DCF argues that the circuit court should have dismissed the petition for lack of personal jurisdiction because Sun-Sentinel did not effect formal service of process. Sun-Sentinel argues that DCF waived its objection to the court's personal jurisdiction by seeking a transfer of venue. The district court agreed with Sun-Sentinel and held that DCF waived its objection. We disagree.

In Babcock v. Whatmore, 707 So.2d 702, 704 (Fla.1998), we held that "a defendant waives a challenge to personal jurisdiction by seeking affirmative relief—such requests are logically inconsistent with an initial defense of lack of jurisdiction." The question here is whether DCF's motion to transfer venue was a request for affirmative relief. We have not previously addressed this issue and the district courts that have are conflicted. The district court below relied on the Second District's decision in Hubbard v. Cazares, 413 So.2d 1192 (Fla. 2d DCA 1981). Hubbard, however, conflicts with the Fourth District's decision in Dimino v. Farina, 572 So.2d 552 (Fla. 4th DCA 1990).⁴ With respect to this issue, we disapprove the opinion below and that in Hubbard, and we approve the opinion in Dimino.

Hubbard held that "a request for change of venue following a timely asserted challenge to personal jurisdiction is a request for affirmative relief which constitutes a waiver of the jurisdictional challenge." 413 So.2d at 1193.⁵ The Hubbard Court relied on two non-Florida cases: Killearn Properties, Inc. v. Lambright, 176 Ind. App. 684, 377 N.E.2d 417 (1978), and Sangdahl v. Litton, 69 F.R.D. 641 (S.D.N.Y.1976). The court's reliance on these two cases is unpersuasive, and we refuse to adopt it. Both Killearn Properties and Sangdahl involved change-of-venue requests that preceded objections to personal jurisdiction. Here the motion to transfer venue and the motion to dismiss for lack of personal jurisdiction were made simultaneously. This distinction was recognized by a different district of the Indiana Court of Appeals in State v. Omega Painting, Inc., 463 N.E.2d 287 (Ind.Ct. App.1984).

In Omega Painting, the court "expressly disavow[ed]" the Hubbard court's reliance on Killearn Properties. 463 N.E.2d at 292 n. 7. The court stressed that Killearn Properties was predicated upon "a change of venue request filed prior to the assertion of a lack of personal jurisdiction," rather than a change-of-venue motion "filed contemporaneously with the State's answer asserting the lack of personal jurisdiction." Id. at 292. The court held that

once the defense of lack of personal jurisdiction is properly preserved, the defendant may proceed with a defense on the merits without waiving the jurisdictional issue. Accordingly, we cannot say that such a request for a change of venue, filed contemporaneously with or subsequent to the proper preservation of the jurisdictional question, seeks the affirmative relief of the court and, thereby, acts as a waiver of ... the jurisdictional claim.

Id. (citation omitted).

The court disagreed with the Hubbard court's characterization of a change-of-venue motion, filed subsequent to the preservation of the jurisdictional challenge, as "go[ing] beyond matters of defense and seek[ing] affirmative relief." Id. at 292 n. 7 (quoting Hubbard, 413 So.2d at 1193). In this regard, the court distinguished a defendant's filing of a...