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

SAMANTHA       HELFRICH,            NOT FINAL UNTIL TIME EXPIRES TO
INDIVIDUALLY   AND ON               FILE MOTION FOR REHEARING AND
BEHALF OF ALL OTHERS                DISPOSITION THEREOF IF FILED
SIMILARLY SITUATED,
                                    CASE NO. 1D15-1095
      Appellant,

v.

CITY OF JACKSONVILLE
AND   THE    BOARD   OF
TRUSTEES OF THE CITY OF
JACKSONVILLE
RETIREMENT SYSTEM,

      Appellees.

_____________________________/

Opinion filed October 4, 2016.

An appeal from the Circuit Court for Duval County.
Hugh A. Carithers, Judge.

S. Douglas Knox, Paul E. Parrish, and Kelli A. Edson of Quarles & Brady LLP,
Tampa, for Appellant.

Craig D. Feiser, Assistant General Counsel, Loree L. French, Senior Assistant
General Counsel, David J. D’Agata, Chief, Commercial Litigation, and Adina
Teodorescu, Assistant General Counsel, of the Office of General Counsel,
Jacksonville, for Appellees.
      ON MOTIONS FOR REHEARING, REHEARING EN BANC, and for
                        CERTIFICATION




PER CURIAM.

       We deny appellant’s motions for rehearing, rehearing en banc, and for

certification.   We withdraw our earlier opinion, however, and substitute the

following opinion in its place.

       Samantha Helfrich (“appellant”) has raised two points in her appeal from a

summary final judgment entered in favor of the City of Jacksonville and the Board

of Trustees of the Jacksonville Retirement System (“appellees,” “the City,” or “the

Board”). Upon careful examination of the issues raised, we conclude the first point

on appeal is dispositive; therefore, we do not reach the second point.

       When appellant left her employment with the City of Jacksonville, she had

accumulated just over five years of service to the City and had contributed from

her salary approximately $15,666 to her deferred retirement fund under the

“Defined Benefit Plan” of the City’s “General Employees Retirement Plan” (“the

Plan”). In addition to the contributions from the City’s employees, the Plan also

requires the City to make periodic contributions to the retirement fund “[i]n order

to assure the City’s statutory and constitutional guarantee of the actuarial

soundness of the Plan.” § 120.203(c), Jacksonville Ord. Code. In appellant’s case,

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because she had not reached the designated retirement age of sixty-five when she

left the City’s employ, she was afforded her right under the Plan to elect one of the

following options: (1) she could elect to vest for deferred retirement and leave her

contributions in the fund, or (2) she could elect to rescind her vested rights and

receive a refund of her accumulated contributions. § 120.203(g), Jacksonville Ord.

Code.    According to paragraph (A)4.(b) of Part III of the 2005 rules and

regulations adopted by the Board, the body that administers the Plan, “the election

must be made on the prescribed form.” Appellant did not formally elect either of

the options and did not, therefore, submit any election on the “prescribed form.”

Instead, she informed the Board she desired to receive a refund consisting of both

her contributions to the retirement fund and those the City made in order to

maintain the actuarial soundness of the fund during her term of employment. She

was informed by the Board that she was not entitled to any portion of the City’s

contributions, but only to those contributions she personally had made through

payroll deductions. Having received that information, appellant filed the present

declaratory judgment action seeking a declaration from the trial court that the term

“contributions” as used in section 120.203(g) of the Plan included both her own

contributions as well those made by the City. The City filed a motion for summary

judgment and appellant, a cross-motion for partial summary judgment concerning




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the interpretation of the term “contributions.” Following a hearing, the trial court

granted the City’s motion. This appeal followed.

      Under her first point on appeal, appellant contends the trial court erred in

deciding it did not have the jurisdiction to consider her claim. We review a trial

court’s ruling on a motion for summary judgment de novo. Fla. Bar v. Greene, 926

So. 2d 1195, 1200 (Fla. 2006).         Furthermore, a trial court’s ruling on a

jurisdictional issue is a legal one also subject to de novo review. Aspsoft, Inc. v.

WebClay, 983 So. 2d 761, 765 (Fla. 5th DCA 2008). During the hearing on the

parties’ cross-motions for summary judgment, when the omission of an election

under the Plan was brought to the trial court’s attention, the judge appropriately

announced, “We can probably stop right here. . . . I don’t have a case or

controversy in front of me and I don’t give advisory opinions.” See Polk Cty. v.

Sofka, 702 So. 2d 1243, 1245 (Fla. 1997) (holding that “courts are bound to take

notice of the limits of their authority and if want of jurisdiction appears at any

stage of the proceedings, original or appellate, the court should notice the defect

and enter an appropriate order”); Marion Cty. Hosp. Dist. v. Akins, 435 So. 2d

272, 273 (Fla. 1st DCA 1983) (“It is a long-standing rule of appellate jurisprudence

that the court will not undertake to resolve issues which, though of interest to the

bench and bar, are not dispositive of the particular case before the court.”). In its

summary final judgment, the trial court expressly found: “Significantly, Helfrich

                                         4
has yet to rescind her vested election in the Plan in order to invoke her right to any

refund.” It then directly addressed the consequence of appellant’s failure to make

an election. It held, because appellant failed to make her election, her request for a

declaration from the court was one merely “seeking an advisory opinion based

upon a hypothetical state of facts which are contingent, uncertain, and rest in the

future.” Consequently, the trial court held it lacked the jurisdiction to consider her

claim for declaratory relief.

      A circuit court’s power to render a declaratory judgment rests on whether it

can clearly be “‘made to appear that there is a bona fide, actual, present practical

need for the declaration; that the declaration should deal with a present, ascertained

or ascertainable state of facts or present controversy as to a state of facts.’” Bryant

v. Gray, 70 So. 2d 581, 584 (Fla. 1954) (quoting May v. Holley, 59 So. 2d 636,

639 (Fla. 1952)). In fact, “[t]he relief sought should not merely be legal advice by

the courts or to give an answer to satisfy curiosity. [Rather,] there must be a bona

fide dispute between the contending parties as to a present justiciable question.”

Id. (citing Local No. 234 v. Henley & Beckwith, Inc., 66 So. 2d 818 (Fla. 1953)).

Likewise, “[t]he relief sought should not merely be legal advice by the courts or to

give an answer to satisfy curiosity.” Id. The trial court certainly understood these

principles when it cited to Bryant in its summary final judgment.




                                          5
      In Bryant, the Florida Supreme Court ruled the trial court lacked jurisdiction

to enter a declaratory judgment in favor of the plaintiff, who had only expressed a

“desire” to be a candidate in an election to fill the term of a deceased governor; the

plaintiff was not sure; and “[i]n order that he might be assisted in making up his

mind in coming to a decision, the petition for declaratory decree was filed, praying

for a decree which [might] or [might not have], materialize[d].” Id. (emphasis

added). Similarly, in Okaloosa Island Leasholders Association v. Okaloosa Island

Authority, 308 So. 2d 120 (Fla. 1st DCA 1975), also cited by the trial court, we

recognized that “[w]hile the existence of an actual controversy is not necessarily a

prerequisite to the activation of the court’s jurisdiction over a declaratory judgment

action, it is clear that there must be a bona fide dispute between contending parties

as to a present justiciable issue in order to invoke the declaratory judgment act.”

Id. at 121. More recently, in Apthorp v. Detzner, 162 So. 3d 236 (Fla. 1st DCA

2015), we considered the question whether the plaintiff sufficiently claimed a

justiciable issue when he sought to have the trial court declare unconstitutional, as

a violation of Florida’s Sunshine Amendment, a statute authorizing the use of

qualified blind trusts by public officials with regard to financial disclosures

required by law. The trial court granted the motion and declared the statute

unconstitutional. In vacating that ruling and dismissing the appeal, we agreed with

the defendant that the plaintiff wholly failed to plead a present controversy simply

                                          6
because he failed to allege that any public officer had in fact filed a financial

disclosure containing a qualified blind trust as defined by the statute. We therefore

“decline[d]” the plaintiff’s invitation “to render an advisory opinion,” id. at 242,

stating that a “present controversy based on articulated facts which demonstrate a

real threat of immediate injury” was necessary to invoke our jurisdiction. Id. at

240-41.

      We now hold, consistent with Bryant, Okaloosa Island, and Apthorp, that

appellant’s request for a declaratory judgment posed nothing more than a

hypothetical question raised to assist her in deciding which election to make under

the Plan, and did not state a “definite and concrete assertion[] of right.” Apthorp,

162 So. 3d at 241. The trial court was eminently correct in holding appellant’s

request for a judicial declaration was one simply seeking an advisory opinion.

Because appellant failed to present a justiciable controversy, the trial court lacked

jurisdiction to issue a declaratory judgment. Thus, since the trial court correctly

determined it lacked jurisdiction, it should have dismissed appellant’s complaint

without also reaching its merits. Accordingly, we are compelled to DISMISS the

appeal, VACATE the final judgment entered below, and REMAND to the trial

court with directions to dismiss appellant’s complaint with prejudice. Id. at 242

(citing Philip J. Padovano, Florida Appellate Practice, § 1:2 (2015 ed.)

(acknowledging the appellate court’s duty to correct a lower court’s unlawful

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exercise of jurisdiction by vacating or quashing an order entered without

jurisdiction)).

ROBERTS, C.J., BILBREY, and JAY, JJ., CONCUR.




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