                                       IN THE DISTRICT COURT OF APPEAL
                                       FIRST DISTRICT, STATE OF FLORIDA

RICK SCOTT, IN HIS OFFICIAL            NOT FINAL UNTIL TIME EXPIRES TO
CAPACITY AS GOVERNOR OF                FILE MOTION FOR REHEARING AND
THE STATE OF FLORIDA,                  DISPOSITION THEREOF IF FILED

      Petitioner,                      CASE NO. 1D16-3942

v.

GAIL FRANCATI,

      Respondent.

___________________________/


Opinion filed March 20, 2017.

Petition for Writ of Prohibition.

Pamela Jo Bondi, Attorney General, and Rachel Nordby, Deputy Solicitor General,
Tallahassee, for Petitioner.

Joanna Greber Dettloff, Gary L. Wimbish, and Megan L. Gisclar of Wilkes &
McHugh, Tampa, for Respondent.


ROWE, J.

      Governor Rick Scott petitions this Court for a writ of prohibition to bar further

proceedings in the trial court because he is not a proper defendant and because no

justiciable case or controversy exists. For the reasons that follow, we grant the

petition.
                                    Background

      Gail Francati, a former nursing home resident, seeks a declaration regarding

the constitutionality of the 2014 amendments to section 400.023, Florida Statutes.

Francati argues that the amendments violate the separation of powers doctrine by

creating new procedural rules singling out nursing home residents and violate her

right to access to courts by limiting the parties that can be named as defendants in

an action brought by a nursing home resident alleging negligence or a violation of

residents’ rights. She named the State of Florida and Rick Scott, in his capacity as

Governor, as defendants in her complaint. Governor Scott and the State moved to

dismiss the complaint on two grounds: (1) they were not proper parties to the suit;

and (2) the complaint failed to state an actual case or controversy. After a hearing,

the trial court granted the State’s motion to dismiss but ruled that Francati’s suit

against Governor Scott could proceed. Governor Scott petitions this Court for a writ

of prohibition to prevent further proceedings in the circuit court.

                  Whether the Governor is a Proper Defendant

      The determination of whether a state official is a proper defendant in a

declaratory action challenging the constitutionality of a statute is governed by three

factors. The determination begins with ascertaining whether the named state official

is charged with enforcing the statute. Haridopolos v. Alachua Cty., 65 So. 3d 577,

578 (Fla. 1st DCA 2011); see also Marcus v. State Senate for the State, 115 So. 3d

448, 448 (Fla. 1st DCA 2013) (holding that state legislators were not proper parties
                                          2
to an action challenging a statute that preempted county and municipal regulation of

firearms and ammunition because the legislators were not designated as the

enforcement authority); Walker v. President of the Senate, 658 So. 2d 1200 (Fla. 5th

DCA 1995) (holding that the Senate President and Speaker of the House were not

proper parties to a declaratory action challenging certain operations of the

Department of Corrections). If the named official is not the enforcing authority, then

courts must consider two additional factors: (1) whether the action involves a broad

constitutional duty of the state implicating specific responsibilities of the state

official; and (2) whether the state official has an actual, cognizable interest in the

challenged action. Atwater v. City of Weston, 64 So. 3d 701, 703 (Fla. 1st DCA

2011); see also Coal. for Adequacy & Fairness in Sch. Funding, Inc. v. Chiles, 680

So. 2d 400, 403 (Fla. 1996) (holding that the governor was a proper party to an action

challenging the failure to adequately fund the public education system due to his

position as chief executive officer and chairperson of the Board of

Education); Brown v. Butterworth, 831 So. 2d 683, 689-90 (Fla. 4th DCA 2002)

(holding that the attorney general and the president of the Florida Senate were proper

parties to an action challenging the constitutionality of a redistricting plan).

Applying these factors to Francati’s complaint, we conclude that Governor Scott is

not a proper defendant to her suit.

      Specifically, Francati challenges the constitutionality of section 400.023(3),

Florida Statutes (2015), which provides:
                                           3
             (3) A cause of action may not be asserted against an individual
      or entity other than the licensee, the licensee’s management or
      consulting company, the licensee’s managing employees, and any
      direct caregivers, whether employees or contractors, unless, after a
      motion for leave to amend hearing, the court or an arbitration panel
      determines that there is sufficient evidence in the record or proffered
      by the claimant to establish a reasonable showing that:
             (a) The individual or entity owed a duty of reasonable care to the
      resident and that the individual or entity breached that duty; and
             (b) The breach of that duty is a legal cause of loss, injury, death,
      or damage to the resident.
             For purposes of this subsection, if, in a proposed amended
      pleading, it is asserted that such cause of action arose out of the conduct,
      transaction, or occurrence set forth or attempted to be set forth in the
      original pleading, the proposed amendment relates back to the original
      pleading.

A review of the statute reveals that Governor Scott is not charged with enforcing the

statute. Indeed, Francati never argues that Governor Scott is an enforcing authority

under the statute. Neither does she allege that the nursing home pre-suit statute

involves a broad constitutional duty of the state implicating specific responsibilities

of Governor Scott or that Governor Scott has an actual, cognizable interest in the

challenged action. Rather, Francati argues that she is not required to demonstrate

any    of    these    factors     because,       unlike   the    statutes    challenged

in Marcus, Haridopolos, Atwater, and Walker, the statute challenged in her

declaratory action is self-executing. She posits that the Governor is a proper

defendant in a suit challenging the constitutionality of a self-executing statute by

virtue of his general executive duty to execute and enforce the laws of Florida. We

find no merit in this argument.

                                             4
      While we recognize that Atwater involved a statute that identified a specific

enforcement authority, the holding in that case is equally applicable to an action

challenging the constitutionality of a self-executing statute, such as section 400.023.

The question of whether a state official is a proper defendant to a suit challenging

the constitutionality of a statute does not turn on whether the statute is self-executing.

Rather, as our court instructed in Atwater, our analysis focuses on whether the named

defendants have an actual interest in the outcome of the lawsuit, necessary for the

court to exercise its jurisdiction to render a declaratory judgment:

      Even though the legislature has expressed its intent that the declaratory
      judgment act [chapter 86, Florida Statutes] should be broadly
      construed, there still must exist some justiciable controversy between
      adverse parties that needs to be resolved for a court to exercise its
      jurisdiction. Otherwise, any opinion on a statute’s validity would be
      advisory only and improperly considered in a declaratory action.

Id. at 704-05 (quoting Martinez v. Scanlan, 582 So. 2d 1167, 1170-71 (Fla. 1991))

(emphasis in original).

      Contrary to Francati’s assertion and the trial court’s order, the Governor’s

general executive power, standing alone, does not render him a proper defendant in

a challenge to the constitutionality of a self-executing statute. Harris v. Bush, 106

F.Supp.2d 1272, 1276-77 (N.D. Fla. 2000). Article IV, section 1 of the Florida

Constitution requires Governor Scott, as Chief Executive Officer of the State, “to

take care that the laws be faithfully executed.” It is absurd to conclude that the

Governor’s general executive power under the Florida Constitution is sufficient to

                                            5
make him a proper defendant whenever a party seeks a declaration regarding the

constitutionality of a state law. Women’s Emergency Network v. Bush, 323 F.3d

937, 949 (11th Cir. 2003) (“If a governor’s general executive power provided a

sufficient connection to state law to permit jurisdiction over him, any state statute

could be challenged simply by naming the governor as a defendant.”). With regard

to Francati’s action, Governor Scott has no enforcement authority over the statute

she challenges. And there is no relief the court could order Governor Scott to

provide to remedy the constitutional violation alleged in the complaint. Where it is

clear, as here, that the plaintiff cannot allege any proper basis for naming the

Governor as a party defendant, the court should decline to assert jurisdiction.

           Whether Francati Has Alleged a Justiciable Controversy

      Governor Scott also argues that the trial court lacks subject matter jurisdiction

over this case because Francati failed to allege a justiciable controversy that would

entitle her to declaratory relief. “Declaratory judgment is appropriate only when

there is an actual controversy before the court; a court otherwise lacks

jurisdiction.” Yell v. Healthmark of Walton, Inc., 772 So. 2d 568, 570 (Fla. 1st DCA

2000). Thus, Francati was required to allege a justiciable controversy before the trial

court could reach the merits of her constitutional claim. Apthorp v. Detzner, 162

So. 3d 236, 240 (Fla. 1st DCA 2015). Specifically, Francati was required to allege

“a present controversy based on articulated facts which demonstrate a real threat of

immediate injury.” Id.
                                          6
      Although she has been presented with multiple opportunities to do so, Francati

fails to allege a violation of section 400.023. She does not allege that an individual

or entity - other than the licensee, the licensee’s management or consulting company,

the licensee’s managing employees, and any direct caregivers, whether employees

or contractors - breached a duty of reasonable care that caused her to suffer some

sort of injury or loss. Instead, Francati contends that her complaint alleges a present

controversy because section 400.023 directs the procedures she must follow, takes

away her common law right to bring a suit for negligence, and limits her remedies

in violation of her constitutional rights of due process and access to courts. These

general allegations are insufficient to demonstrate a justiciable controversy. “To be

entitled to a declaratory judgment, ‘the dispute must be justiciable in the sense that

it is based upon some definite and concrete assertions of right, the contest therefore

involving the legal or equitable relations of parties having adverse interests with

respect to which the declaration is sought.’” Id. at 241 (quoting Colby v. Colby, 120

So. 2d 797, 799 (Fla. 2d DCA 1960)). Francati merely raises a general challenge to

the constitutionality of section 400.023; she fails to allege any concrete injury or

how the statute actually infringes on any of her rights. These deficiencies in her

complaint prevent her from presenting a justiciable controversy and deprive the trial

court of subject matter jurisdiction.*


*
 Dismissal of the action against Governor Scott does not deprive Francati of a means
of testing the constitutionality of the statute. She may bring suit against a specific
                                            7
               Prohibition is an Appropriate Remedy in this Case

      “Prohibition is an extraordinary writ by which a superior court may prevent

an inferior court or tribunal, over which it has appellate and supervisory jurisdiction,

from acting outside its jurisdiction.” Mandico v. Taos Const., Inc., 605 So. 2d 850,

853 (Fla. 1992). Prohibition “does not lie to prevent mere error in the exercise of

the inferior tribunal’s jurisdiction.” Haridopolos v. Citizens for Strong Sch., Inc.,

81 So. 3d 465, 468 (Fla. 1st DCA 2011). The supreme court has explained:

      prohibition may not be used to divest a lower tribunal of jurisdiction to
      hear and determine the question of its own jurisdiction; nor may it be
      used to test the correctness of a lower tribunal’s ruling on jurisdiction
      where the existence of jurisdiction depends on controverted facts that
      the inferior tribunal has jurisdiction to determine.


Id. (citing English v. McCray, 348 So. 2d 293, 297 (Fla. 1977)).

      Rather, prohibition must be used “only in emergency cases to prevent an

impending injury where there is no other appropriate and adequate legal

remedy.” Id. Thus, the writ has very limited application:

      Prohibition may only be granted when it is shown that a lower court is
      without jurisdiction or attempting to act in excess of jurisdiction. It is
      preventive and not corrective in that it commands the one to whom it is
      directed not to do the thing which the supervisory court is informed the
      lower tribunal is about to do. Its purpose is to prevent the doing of
      something, not to compel the undoing of something already done.




defendant, who she alleges has acted negligently or violated residents’ rights.
Should that defendant then move to dismiss the suit by invoking the statute, Francati
could then argue that the statute is unconstitutional as applied.
                                          8
Roberts v. Brown, 43 So. 3d 673, 677-78 (Fla. 2010) (quoting English, 348 So. 2d

at 296-97). And with regard to appellate review of non-final orders not designated

as appealable under Florida Rule of Appellate Procedure 9.130(a)(3), such as

motions to dismiss, the supreme court has admonished that extraordinary relief is

available only in very limited circumstances. Citizens Prop. Ins. Corp. v. San

Perdido Ass’n, Inc., 104 So. 3d 344, 349 (Fla. 2012). Those circumstances include

when another court or administrative body has jurisdiction over the subject matter,

when the trial court proceeds in a case where it has lost jurisdiction, and when the

order on review turns on an issue of law and the trial court lacks subject matter

jurisdiction.

      First, a writ of prohibition may be granted when a trial court acts outside of

its jurisdiction. For example, prohibition is appropriate when another court or

administrative body has jurisdiction over the subject matter. Roberts, 43 So. 3d at

673 (granting a writ of prohibition challenging the denial of a motion to dismiss a

pre-election challenge to a proposed citizen-initiative amendment because the

supreme court has exclusive jurisdiction over such matters); Dep’t of Agric. &

Consumer Servs. v. Bonanno, 568 So. 2d 24 (Fla. 1990) (granting a writ of

prohibition challenging the denial of a motion to dismiss a citrus canker lawsuit

because the state removed jurisdiction over those cases from the circuit court and

required them to be heard through the administrative hearings process); Durham v.

Butler, 89 So. 3d 1023 (Fla. 3d DCA 2012) (granting a writ of prohibition
                                         9
challenging the trial court’s denial of a motion to dismiss a paternity complaint

because a similar action was still pending in a Missouri court).

      Second, prohibition is appropriate when the circuit court attempts to proceed

in a case when it has lost jurisdiction. State, Dep’t of Highway Safety & Motor

Vehicles v. Lopez, 188 So. 3d 95 (Fla. 3d DCA 2016) (granting a writ of prohibition

where the trial court lost jurisdiction over a case after the plaintiff failed to challenge

a ruling within the statutory timeframe); Travelers Cas. & Sur. Co. of Am. v.

Culbreath Isles Prop. Owners Ass’n, 103 So. 3d 896 (Fla. 2d DCA 2012) (granting

a writ of prohibition where the trial court exceeded its jurisdiction by allowing a

party to proceed on a supplemental third-party claim filed after entry of final

judgment).

      Finally, prohibition is a proper remedy when the order being reviewed turns

on an issue of law, the facts are uncontroverted, and the lower tribunal is poised to

proceed without subject matter jurisdiction. Nikolits v. Hanna, 92 So. 3d 299 (Fla.

4th DCA 2012) (granting a writ of prohibition where it was undisputed that the

plaintiffs failed to comply with a statutory requirement to bring a suit to challenge a

tax assessment): DHL Express (USA), Inc. v. State, ex rel. Grupp, 60 So. 3d 426,

428 (Fla. 1st DCA 2011) (granting a writ of prohibition where there was no disputed

issue of fact and it was clear that the court lacked subject matter jurisdiction over the

proceeding). On the other hand, when the question of the trial court’s jurisdiction

rests on controverted facts and the court has jurisdiction to make a factual
                                            10
determination, a writ of prohibition may not be granted. See Dressler v. Dressler,

967 So. 2d 1009, 1010 (Fla. 4th DCA 2007) (denying a writ of prohibition in a

dissolution of marriage proceeding because any attack on the validity of the parties’

marriage would not affect the trial court’s subject matter jurisdiction).

      We conclude that the third circumstance is present here. Governor Scott seeks

to prevent more than a mere error in the exercise of the trial court’s jurisdiction;

rather, he seeks to prevent the trial court from proceeding in a case where it lacks

subject matter jurisdiction and where no amendment to Francati’s complaint would

cure the jurisdictional defects of lack of a proper defendant and lack of a justiciable

controversy. Cf. Hernando Cty. v. Mills, 114 So. 3d 1026, 1027 (Fla. 5th DCA

2012) (denying a writ of prohibition where it was possible that a complaint could be

amended to assert a claim that would fall within the jurisdiction of the circuit court).

Francati has failed to allege a justiciable claim, and she cannot argue, in good faith,

that she can allege any of the factors enunciated in Atwater that would allow her to

name the Governor as a defendant in her constitutional challenge to section 400.023.

Under this unique set of facts, we find that prohibition is warranted to prevent the

trial court from exceeding its jurisdiction and to afford Governor Scott adequate

relief. Accordingly, we GRANT the petition for writ of prohibition and QUASH the

order denying Governor Scott’s motion to dismiss.


RAY, and M.K. THOMAS, JJ., CONCUR.

                                          11
