Hancock v. Wilkinson

• Decision Date: 11 December 1981
• Docket Number: No. 81-1547,81-1547
• Citation: Hancock v. Wilkinson, 407 So.2d 969 (Fla. App. 1981)
• Parties: Irene HANCOCK, Jennie Leben, Frank Morgan, Dan Poleminos, Ina Perry, Ella Heidelback, and Oscar Kvaas, Appellants, v. Robert WILKINSON, State of Florida, Department of Health and RehabilitativeServices, Appellees.
• Court: Florida District Court of Appeals

Page 969

407 So.2d 969

Irene HANCOCK, Jennie Leben, Frank Morgan, Dan Poleminos, Ina Perry, Ella Heidelback, and Oscar Kvaas, Appellants, v. Robert WILKINSON, State of Florida, Department of Health and RehabilitativeServices, Appellees.

No. 81-1547.

District Court of Appeal of Florida, Second District.

Dec. 11, 1981.

James W. Kelly of Accorsi & Kelly, P.A., Avon Park, for appellants.

Anthony N. DeLuccia, Jr., Fort Myers, for appellees.

GRIMES, Acting Chief Judge.

In this appeal from a nonfinal order, we are called upon to determine the proper venue for a suit against a state agency. We have jurisdiction pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(A).

Appellant Ina Perry owns and operates a boarding home in Sebring. The other appellants are residents of the home. They filed a complaint in the Circuit Court for Highlands County against the Department of Health and Rehabilitative Services and one of its employees, Robert Wilkinson, seeking an injunction and compensatory and punitive damages for what they contended was harassment by the Department which amounted to a violation of their constitutional rights. In support of this contention, they alleged that the Department attempted to remove several residents from the boarding home and that Mr. Wilkinson threatened Mrs. Perry after a court enjoined the removal of the residents. They further alleged that the Department had made an unreasonable number of inspections of the home, was attempting to dissuade people from using it, and had publicly described it as a problem home. Finally, the appellant-residents asserted that employees of the Department had made body searches of them without their consent or other legal authority. The Department moved to dismiss the complaint, arguing, among other things, that it could be sued only in Leon County where its headquarters were located. After a hearing, the court entered an order treating the motion to dismiss as a motion for change of venue and transferring the case to the Circuit Court for Leon County.

Appellants concede that generally an agency of the state has a common law right to be sued in the county of its headquarters. Florida Public Service Commission v. Triple "A" Enterprises, Inc., 387 So.2d 940 (Fla.1980). However, they contend that the exception to this rule, known as the sword-wielder doctrine, is applicable to the present case and that therefore venue was properly in Highlands County. We agree.

The sword-wielder doctrine comes...