          Supreme Court of Florida
                                   ____________

                                   No. SC18-793
                                   ____________

                          CHRISTOPHER SANCHEZ,
                                 Petitioner,

                                         vs.

                            MIAMI-DADE COUNTY,
                                 Respondent.

                                December 19, 2019

PER CURIAM.

      Petitioner, Christopher Sanchez, brought a “negligent security” claim against

Respondent, Miami-Dade County (the County), after being shot and injured at a

birthday party hosted at one of the County’s public parks (the Park). He seeks

review of Sanchez v. Miami-Dade County, 245 So. 3d 933, 934 (Fla. 3d DCA

2018), in which the Third District Court of Appeal concluded that his claim was

barred by sovereign immunity. Sanchez explained that Petitioner’s claim was

predicated on the County’s alleged failure to “allocat[e] off-duty police officers” to

the birthday party and that sovereign immunity “protects [the County’s] policy and

planning decisions about where to allocate its limited police resources.” Id. at 944.
Recognizing that sovereign immunity may bar an action even where a duty exists,

Sanchez reached its holding irrespective of any duty owed to Petitioner by the

County. See id. at 943 n.4 (“[D]uty is not an issue here.”).

      This Court granted jurisdiction on the ground that Sanchez expressly and

directly conflicts with the Fourth District Court of Appeal’s decision in City of

Belle Glade v. Woodson, 731 So. 2d 797 (Fla. 4th DCA 1999), on the question of

whether the existence of a duty renders sovereign immunity inapplicable. See art.

V, § 3(b)(3), Fla. Const. Woodson concluded that sovereign immunity did not

shield a city from a personal injury and wrongful death suit in which the plaintiffs

alleged that the city “fail[ed] to provide adequate security” for a dance that took

place on the premises of the city’s civic center. Woodson, 731 So. 2d at 797.

Woodson specifically reasoned that sovereign immunity was inapplicable because

the city had “the same common law duty as a private person to properly maintain

and operate the property.” Id. at 798.

      Having heard oral argument, we dismiss Petitioner’s petition for review and

decline to reach the merits of Sanchez. We do so for two reasons. First, the

conflict issue here—i.e., the merging of duty and sovereign immunity—has already

been resolved by this Court in opinions issued after the Fourth District’s decision

in Woodson. Those opinions make clear that duty and sovereign immunity are not

to be conflated. Second, Petitioner argues to this Court a new theory of liability,


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and this Court is not a forum for adjudicating matters that were not presented

below. Before more fully addressing these two reasons for dismissal, we review

the background of the case and the Third District’s decision below.

                                    Background

      Petitioner and another individual, Noel Pozos, were shot and injured at the

same party hosted at the Park. The Park contains a shelter that the County rented

to the party host for the party. According to the Park’s rental rules and regulations,

the party host—for what turned out to be the size and nature of the party—was

required to obtain a broadcast permit from the County and hire off-duty police

officers. The party host instead hired private security guards and did not obtain

any permits. The only County employee in attendance was a park service aide

whose responsibilities were largely to keep the area clean.

      Petitioner and Pozos filed separate negligent security suits against the

County alleging that the County “negligently failed to allocate off-duty police

officers as security to protect the partygoers.” Sanchez, 245 So. 3d at 934. In both

cases, the County moved for summary judgment, arguing in relevant part that the

claim was barred by sovereign immunity. Id.

      In Pozos’s case, the trial court summarily denied the County’s summary

judgment motion, the County appealed, and the Third District dismissed the appeal

as a jurisdictional matter after determining that the trial court’s “unelaborated


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order” was “a nonfinal, nonappealable order.” Miami-Dade County v. Pozos, 242

So. 3d 1152, 1152-53 (Fla. 3d DCA 2017), discretionary review proceeding

stayed, No. SC18-1118 (Fla. July 19, 2018). Judge Rothenberg dissented in Pozos,

arguing that the Third District had jurisdiction and that sovereign immunity clearly

barred the claim because “the County’s actions” involved “a discretionary planning

and/or policy decision . . . regarding where and how to deploy its available

manpower (sworn police officers).” Id. at 1158, 1165-66 (Rothenberg, J.,

dissenting).

      In Petitioner’s case, the trial court granted the County’s summary judgment

motion, and the Third District in Sanchez affirmed. Sanchez specifically “agree[d]

with and adopt[ed] the portion of Chief Judge Rothenberg’s Pozos dissent

concluding under the facts of this case that the county had sovereign immunity.”

Sanchez, 245 So. 3d at 934. The Sanchez majority then separately addressed two

points raised by Judge Salter in his Sanchez dissent, namely: (1) the nature of

Petitioner’s claim, and (2) the applicability of Woodson.

      Regarding Petitioner’s claim, the Sanchez majority rejected Judge Salter’s

conclusion that Petitioner challenged “violations of the park employees’

operational duties to keep track of the number of party-goers, verify security

measures, and shut down parties if they spiral out of control.” Id. at 939. After




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looking to Petitioner’s own words and those of his counsel, the Sanchez majority

summed up:

             Sanchez’s claim, as distilled by the time it got to this court, was
      not about failing to close the park by dark or having no-trespass signs.
      His claim was not about park employees violating their duties to keep
      track of party-goers and shut the party down after it got too large.
      Sanchez’s claim was for negligent security. The county, according to
      Sanchez, was required to provide off-duty police officers at parties
      like this one, and did not. According to Sanchez’s security expert, it
      was foreseeable that there would be criminal activity at the party, but
      it could have been avoided had the county provided the off-duty
      officers.

Id. at 940.

      Regarding Woodson, the Sanchez majority rejected the applicability of that

case, explaining in part that Woodson “conflated its discussion of duty with its

determination of sovereign immunity” and that this Court has since “warned that

one does not necessarily follow the other.” Id. at 942.

                               Conflict Jurisdiction

      After further consideration, we conclude that the conflict issue here is a dead

issue that has been resolved by this Court in previous opinions. We further

conclude that this case does not present any compelling reason for us to revive and

readdress the issue.

      As the Sanchez majority itself recognized, this Court has already clarified

that duty and sovereign immunity are conceptually distinct such that the existence

of the former does not render the latter inapplicable. Id. In Pollock v. Florida

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Department of Highway Patrol, 882 So. 2d 928, 933 (Fla. 2004) (citation omitted),

this Court explained that “if a duty of care is owed, it must then be determined

whether sovereign immunity bars an action for an alleged breach of that duty. In

making this assessment, it is necessary to ascertain the character of the allegedly

negligent governmental act or omission.” And in Wallace v. Dean, 3 So. 3d 1035,

1044-45 (Fla. 2009) (footnotes omitted) (citations omitted), this Court stated:

      When addressing the issue of governmental liability under Florida
      law, we have repeatedly recognized that a duty analysis is
      conceptually distinct from any later inquiry regarding whether the
      governmental entity remains sovereignly immune from suit
      notwithstanding the legislative waiver present in section 768.28,
      Florida Statutes. Under traditional principles of tort law, the absence
      of a duty of care between the defendant and the plaintiff results in a
      lack of liability, not application of immunity from suit. Conversely,
      sovereign immunity may shield the government from an action in its
      courts (i.e., a lack of subject-matter jurisdiction) even when the State
      may otherwise be liable to an injured party for its tortious conduct.

Indeed, Wallace accepted conflict jurisdiction in that case in part because “the

decision below improperly conflated the separate questions of duty and sovereign

immunity.” Id. at 1040.

      In short, this Court’s opinions have rendered obsolete the Fourth District’s

reasoning in Woodson that the existence of a duty renders sovereign immunity

inapplicable. But even if this case otherwise presented a live conflict in need of

resolution, dismissal would nevertheless be warranted because the theory of

liability Petitioner presents to this Court is one he never presented below.


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                       Petitioner’s New Theory of Liability

      Petitioner does not challenge the Third District’s specific holding. Rather,

he asserts that the Third District “mischaracterize[d]” his claim as one that sought

“to hold the COUNTY liable for failing to allocate police resources.” In his briefs

to this Court, Petitioner at bottom argues that the Park’s rules and regulations

required the party host to hire off-duty police officers and that the County

negligently failed to monitor and enforce its rules and the rental agreement by

allowing the party to go forward with only private security guards in

place. Petitioner essentially tracks the dissenting opinion below in which Judge

Salter characterized Petitioner’s claim as one that challenged the County’s failure

“to monitor and enforce the agreement.” Sanchez, 245 So. 3d at 947 n.9 (Salter, J.,

dissenting). But the Sanchez majority aptly explained why that was “not Sanchez’s

claim.” Sanchez, 245 So. 3d at 941 n.3; see id. at 939-40. The record supports the

Sanchez majority’s characterization of Petitioner’s claim.

      Even assuming Petitioner originally intended for his claim to be treated as

one that challenged the County’s alleged failure to monitor and enforce something,

a review of the record reveals that Petitioner in that event repeatedly and

inexplicably failed to clarify the nature of his claim even though the County and

the lower courts all viewed his claim in the specific context of one that challenged

the County’s allocation of police resources. Petitioner failed to do so at the


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summary judgment hearing even though the County expressly argued to the trial

judge that Petitioner was “questioning the deployment decision here.” Petitioner

again failed to do so in his initial brief to the Third District even though the trial

court in its order granting summary judgment not only described Petitioner’s claim

as one that challenged the County’s purported failure “to provide police officers at

a birthday party at a public park” but also repeatedly used some form of the terms

“provide,” “station,” “allocate,” or “deploy.” Petitioner obviously long ago

abandoned—assuming he initially presented—any argument that he was

challenging something other than a deployment decision.

      In the end, Petitioner presents this Court with a new theory of liability and

fails to make any argument why he should survive summary judgment on the claim

that was actually litigated below. Petitioner thus has changed horses in midstream.

That doesn’t work. A litigant seeking to overturn a lower court’s judgment may

not rely on one line of argument in the trial court and then pursue a different line of

argument in the appellate courts. Absent fundamental error, arguments must be

preserved to be heard in appellate proceedings. “Appellate review is therefore

limited to the specific grounds” argued in the lower tribunal. Aills v. Boemi, 29 So.

3d 1105, 1109 (Fla. 2010). A prerequisite for prevailing on an argument in this

Court is that the same argument was presented in both the trial court and the

district court. Accordingly, dismissal is warranted.


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                                   Conclusion

      We dismiss Petitioner’s petition for review.

      It is so ordered.

CANADY, C.J., and POLSTON, LABARGA, LAWSON, and MUÑIZ, JJ.,
concur.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND,
IF FILED, DETERMINED.

Application for Review of the Decision of the District Court of Appeal – Direct
Conflict of Decisions

      Third District - Case No. 3D16-959

      (Miami-Dade County)

Ronald D. Rodman and Stephanie Vega Graves of Friedman, Rodman & Frank,
P.A., Miami, Florida; and Pamela Beckham and Robert J. Beckham, Jr., of
Beckham & Beckham, P.A., Miami, Florida,

      for Petitioner

Abigail Price-Williams, Miami-Dade County Attorney, and Joni A. Mosely and
Erica S. Zaron, Assistant County Attorneys, Miami, Florida,

      for Respondent




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