Jacksonville Elec. Auth. v. CLAY CTY. UTIL.

• Decision Date: 04 January 2002
• Docket Number: No. 1D01-530.,1D01-530.
• Citation: 802 So.2d 1190
• Parties: JACKSONVILLE ELECTRIC AUTHORITY, Appellant, v. CLAY COUNTY UTILITY AUTHORITY, a local governmental body, corporate and politic, and AFI Associates, Inc., a Florida corporation, Appellees.
• Court: Florida District Court of Appeals

802 So.2d 1190

JACKSONVILLE ELECTRIC AUTHORITY, Appellant, v. CLAY COUNTY UTILITY AUTHORITY, a local governmental body, corporate and politic, and AFI Associates, Inc., a Florida corporation, Appellees.

No. 1D01-530.

District Court of Appeal of Florida, First District.

January 4, 2002.

Kenneth A. Hoffman and J. Stephen Menton of Rutledge, Ecenia, Purnell & Hoffman, P.A.; John K. Aurell, John R. Beranek, and Martin B. Sipple of Ausley & McMullen, Tallahassee; Richard A. Mullaney, General Counsel, Anthony B. Zebouni, Assistant General Counsel, and Michael B. Wedner, Assistant General Counsel, Office of General Counsel, Jacksonville, for Appellant.

Martin S. Friedman and Daren L. Shippy of Rose, Sundstrom & Bentley LLP, Tallahassee; Grady H. Williams, Jr., Orange Park, for Appellees.

WOLF, J.

This is a timely appeal of a non-final order denying appellant's motion to dismiss due to improper venue. The only issue before the court is whether the trial court improperly denied appellant's home venue privilege. We are bound by prior decisions of the supreme court in our application of the home venue privilege; therefore, we reverse the decision of the trial court, but we certify a question of great public importance to the supreme court.

The Jacksonville Electric Authority (JEA) is a governmental body with its principal place of business in Duval County, Florida. Clay County Utility Authority (CCUA) is a local governmental body with its principal place of business in Clay County, Florida. Both utilities claim the right to provide water and wastewater service to the Clay County portion of a development, The Villages of Argyle (Argyle).

In 1986, the City of Jacksonville acquired from Du-Lay Utility Company, Inc. (Du-Lay) the right to serve all of the territory owned by Du-Lay, which included the Argyle area in both Clay County and Duval County. In 1998, the Public Service Commission cancelled all of the water and sewer certificates owned by Du-Lay, including certificates relevant to the Argyle area. In 1994, the Florida Legislature by Special Act 94-491, created CCUA as an independent special authority to provide water and sewer services within Clay County. The City of Jacksonville transferred all of its wastewater assets and responsibilities to JEA in 1997. Three years later, JEA entered into a Utility Service Agreement with the developer of the property, AFI, regarding the specific terms of service of the Argyle area for both Duval and Clay Counties.

In December 2000, CCUA filed suit against both JEA and AFI in Clay County, alleging that the Utility Service Agreement "is in contravention of Special Act 94-491, Special Act 67-1569, Chapter 164 of the Florida Statutes and other applicable laws, including the Florida Constitution." CCUA sought declaratory and injunctive relief against JEA and AFI. JEA and AFI timely filed motions challenging the venue and requesting that the case be dismissed or transferred to Duval County based on JEA's home venue privilege.

On January 26, 2001, the judge held a motion hearing at which he considered affidavits submitted by both parties, the opposition of the change of venue, and oral arguments from both parties. Four days later, the judge denied the motion for a change of venue, noting that his decision was based on the allegation in the complaint that "the Defendants' agreement is in contravention of ... the Florida Constitution."

Governmental defendants in Florida have a common law "home venue privilege" to be sued in the county where they maintain their principal headquarters. See Fla. Pub. Serv. Comm'n v. Triple "A" Enter., Inc., 387 So.2d 940, 942 (Fla.1980). Absent waiver or application of an identified exception, the home venue privilege appears to be an absolute right. See, e.g., Carlile v. Game & Fresh Water Fish Comm'n, 354 So.2d 362, 366 (Fla.1977); Triple "A", 387 So.2d at 942; Dep't of Cmty. Aff. v. Holmes County, 668 So.2d 1096, 1102 (Fla. 1st DCA 1996)(citing Navarro v. Barnett Bank of West Florida, 543 So.2d 304 (Fla. 1st DCA 1989)). Florida courts have allowed only three exceptions to the home venue privilege. One exception allowed is waiver by statute, which is not applicable in the instant case. Another exception gives the trial court discretion to dispense with the home venue privilege when a governmental body is sued as a joint tortfeasor. See Bd. of County Comm'rs of Madison County v. Grice, 438 So.2d 392, 395 (Fla.1983). In the instant case, no tort is alleged; thus, this exception is inapplicable. A third exception to the home venue privilege is known as the "sword-wielder" doctrine. See Barr v. Fla. Bd. of Regents, 644 So.2d 333, 335 (Fla. 1st DCA 1994). Based on the language in the trial court's order, it apparently relied on the sword-wielder doctrine in denying JEA's motion, although it never used the term "sword-wielder."

The sword-wielder exception applies when the plaintiff's constitutional rights are in "real and imminent danger" of invasion by a state agency. See id. The test in such cases is

whether the state is the initial sword-wielder in the matter and whether the plaintiff's action is in the nature of a shield against the state's thrust. If so, then the suit may be maintained in the county wherein the blow has been or is imminently about to be laid on.

See Triple "A",387 So.2d at 942. To apply the sword-wielder doctrine, the court must first determine that there is a constitutional invasion of the plaintiff's rights which has occurred or which is about to occur in the county where the suit is filed. See Carlile, 354 So.2d at 365. Secondly, the court must determine that the invasion is both real and imminent. See id.

The type of constitutional invasions which have supported the application of the sword-wielder doctrine have been asserted by a private party and have been fundamental in nature. For example, in Barr v. Fla. Bd. of Regents, 644 So.2d 333 (Fla. 1st DCA 1994), there was an alleged violation of the appellant's First Amendment Rights, and in Graham v. Vann, 394 So.2d 178 (Fla. 1st DCA 1981), there were allegations that prisoners were being deprived of basic constitutional rights. At best the allegation in the instant case involved a technical violation of the constitution: that JEA, a local governmental entity, was acting inconsistently with state statute. Thus, no basic or fundamental constitutional deprivation was alleged which would support application of the sword-wielder doctrine.¹

The Florida Supreme Court clearly set forth the policy reasons for allowing the home venue privilege in Smith v....