Simon v. Celebration Co.

• Decision Date: 04 June 2004
• Docket Number: No. 5D02-2262.,5D02-2262.
• Citation: 883 So.2d 826
• Parties: Anton Nicolai SIMON, etc., et. al., Appellants, v. The CELEBRATION COMPANY, et al., Appellees.
• Court: Florida District Court of Appeals

883 So.2d 826

Anton Nicolai SIMON, etc., et. al., Appellants, v. The CELEBRATION COMPANY, et al., Appellees.

No. 5D02-2262.

District Court of Appeal of Florida, Fifth District.

June 4, 2004.

Michael L. Boswell of Michael L. Boswell, P.A., and Bret Hartley of Drymonis, Hartley & Boswell An Association of Professional Corporations, Daytona Beach, for Appellants.

James V. Etscorn, Robert W. Thielhelm, Jr., and Leslie B. Bissinger of Baker & Hostetler LLP, Orlando, for Appellee The Celebration Company.

Mark G. Alexander, Michael G. Tanner and Stephen H. Grimes of Holland & Knight LLP, Jacksonville, for Appellees Stetson University, Harvard University, Auburn University and University of Minnesota.

Usher L. Brown and Erin J. O'Leary of Brown, Ward, Salzman, Weiss & Garganese, P.A., Orlando, for Appellees The Johns Hopkins University and The Osceola County School Board.

PALMER, J.

We sua sponte withdraw the opinion issued on December 5, 2003, and substitute the following opinion in its stead.

Anton Simon, his sister Ana, and his parents Paul and Connie, appeal the final orders entered by the trial court dismissing their lawsuit against The Celebration Company and various educational institutions. The Simons sued for declaratory relief and in tort, alleging that their family had been damaged because they had relocated to The Town of Celebration (developed by The Celebration Company) based upon misrepresentations that The Celebration School provided its students with a quality education based upon a time-tested and successful curriculum known as "best practices". Concluding that the trial court erred in dismissing some but not all counts of the Simons' complaint, we affirm in part and reverse in part.

Mr. and Mrs. Simon enrolled Anton in public school in Orange County. When he experienced difficulties in learning Anton was evaluated and found eligible to receive special learning disability services. He was also given an individual education plan by the county.

The Simons continued to seek out better education options for Anton since he continued to experience difficulty in learning. They allegedly decided to relocate their family to The Town of Celebration because they had received information that The Celebration School, a public school in Osceola County, would offer an appropriate learning environment for Anton. However, after enrolling both of their children in The Celebration School, Mr. and Mrs. Simon became dissatisfied with the learning experience provided by the school and withdrew the children, and re-enrolled them in a private school in Orange County. As a result of their dealings with The Celebration Company and The Celebration School, the Simon family filed a lawsuit against The Celebration Company, Stetson University, Johns Hopkins University, Harvard University, Auburn University, University of Minnesota, The School Board of Osceola County (SBOC), and Valencia Community College (VCC). The five count complaint alleged that Mr. and Mrs. Simon purchased a home in, and relocated their family to, the Town of Celebration in reliance upon false representations made to them by the named defendants concerning the quality of education available at The Celebration School. The complaint essentially alleged The Celebration School failed to live up to the representations which were made and that the Simons suffered damages as a result of their relocation.

Count I of the complaint alleged a claim for declaratory relief against SBOC, requesting a declaration of the Simons' rights concerning the interpretation of section 230.23(4)(m)5 of the Florida Statutes (1997).¹ The complaint averred that SBOC had failed to properly address Anton's educational needs, and requested that the trial court conduct a de novo review of the issue (which had been the subject of an earlier proceeding before an Administrative Law Judge (ALJ) as well as a federal lawsuit). Count II asserted a second claim for declaratory relief against SBOC, alleging that SBOC had violated Article IX, section 1 of the Florida Constitution by failing to provide Anton and Ana with a high quality free public education and, as a result of such failure, the Simons suffered damages.² Count III alleged a claim of fraudulent inducement against all of the defendants, claiming that each defendant had made false statements and/or representations to Mr. and Mrs. Simon concerning the quality of education offered at The Celebration School and that such statements had been made with the intent to persuade Mr. and Mrs. Simon to purchase property in the Town of Celebration. The complaint further alleged that the defendants knew that their statements and/or representations concerning The Celebration School were false when they made them. The complaint also alleged that, but for the false statements and/or representations, Mr. and Mrs. Simon would not have purchased a home in the Town of Celebration and relocated their family there.

Count IV alleged a claim of negligent misrepresentation against all of the defendants, again asserting that each of the defendants made false statements and/or representations relating to the quality of the education available at The Celebration School and that said statements were made with the intent to persuade, and actually had the result of persuading, Mr. and Mrs. Simon to move to the Town of Celebration and to purchase property there. The complaint averred that the defendants either knew that the statements and/or representations were false or that they were without knowledge of their truth or falsity, but that the defendants intended to made the statements so that the prospective purchasers would rely on the false statements and purchase a home in The Town of Celebration.

Count V alleged a claim for declaratory relief against SBOC, alleging that Anton and Ana were denied their right to receive a high quality free education, and that Anton was denied his right to receive a McKay Scholarship under section 229.05371 of the Florida Statutes (2001).³

The defendants filed separate motions to dismiss, raising various grounds for relief. Upon review, the trial court dismissed the Simons' complaint with prejudice, entering separate orders for each defendant. The trial court's ruling regarding each count will be discussed below.

Dismissal of Count I

Count I of the Simons' complaint alleged a claim against SBOC based upon the provisions of section 230.23(4)(m)5 of the Florida Statutes (1997). That statute provides parents who have children who either have been denied a request for, or have been evaluated as needing, special instruction the right to receive a due process hearing regarding the school board's decision regarding same. The due process hearing is conducted by an administrative law judge (ALJ), and the ALJ's decision is final, but subject to review. The statute provides parents with two choices for such review: (1) the parent can file a civil action in the circuit court, or (2) the parent can request an impartial review of the ALJ's order by the district court of appeal.

The Simons' complaint alleged that, prior to filing the instant lawsuit in the trial court, the Simons exhausted their administrative remedies under section 230.23 by requesting and receiving a due process hearing before an ALJ. The complaint further stated that on January 31, 2000, the ALJ issued a final order in favor of SBOC and that within 30 days of that date the Simons filed suit against SBOC in the United States District Court. The Simons later (no specific date was provided) voluntarily dismissed that federal lawsuit, without prejudice, so that this matter could proceed in state circuit court. The instant lawsuit was filed in February of 2001.

The trial court dismissed Count I, concluding that it was time-barred since the Simons' complaint had not been filed in the circuit court within 30 days of the date the ALJ entered its final order. In so ruling, the court rejected the contention that the limitations period had been tolled during the time the matter was pending in the federal court.

The Simons maintain that the trial court erred in so ruling because federal law provides that statutes of limitations are tolled during the period of time a claim is pending in a federal district court. They cite to 28 U.S.C. § 1367(d) which specifically requires state statutes of limitation to be tolled for the period during which a petitioner's cause of action is pending in federal court as well as 30 days after the claim is dismissed.⁴ "The statute of limitations is generally an affirmative defense that cannot be raised in a motion to dismiss unless the complaint affirmatively shows the conclusive applicability of such defense to bar the action." New York State Dept. of Taxation v. Patafio, 829 So.2d 314 (Fla. 5th DCA 2002). Since the instant complaint fails to set forth with particularity the date when the matter was dismissed from federal court, it is impossible to determine from the four corners of the instant complaint the length of time during which the matter was tolled by reason of the fact that the matter was pending in federal court. As such, the trial court erred in ruling that the complaint conclusively established that the statute of limitations barred Count I. Accordingly, on remand, this count should be reinstated.

Dismissal of Count II

In Count II of their complaint the Simons asserted a claim for damages allegedly sustained by them as the result of SBOC's violation of Article IX, section 1 of the Florida Constitution which guarantees a high quality free public education. The trial court dismissed this count, ruling that no private cause of action exists under Article IX, section 1 of the Florida Constitution for the enforcement of its provisions against individual school boards. We agree.

In order for a constitutional provision to create a private cause of action, the provision must be self-executing. See Tucker v. Resha, 634 So.2d 756...