          Supreme Court of Florida
                                    ____________

                                    No. SC13-455
                                    ____________

                          BEACH COMMUNITY BANK,
                                 Petitioner,

                                          vs.

                        CITY OF FREEPORT, FLORIDA,
                                 Respondent.

                                [November 13, 2014]

PER CURIAM.

      Beach Community Bank seeks review of the decision of the First District

Court of Appeal in City of Freeport v. Beach Community Bank, 108 So. 3d 684

(Fla. 1st DCA 2013), in which the First District held that it could exercise its

certiorari jurisdiction to review the trial court’s nonfinal order finding that the City

of Freeport was not immune from suit based on sovereign immunity. In its

decision, the First District relied in part on Miami-Dade County v. Rodriguez, 67

So. 3d 1213 (Fla. 3d DCA 2011), a decision that this Court was considering on

appeal at the time. We accordingly have jurisdiction. See art. V, § 3(b)(3), Fla.

Const.; Jollie v. State, 405 So. 2d 418, 420 (Fla. 1981).
      We stayed the proceedings in Beach Community Bank pending our

disposition in Rodriguez, in which the Third District Court of Appeal used its

certiorari jurisdiction to address whether the defendant was immune from suit

based on principles of sovereign immunity. See Rodriguez, 67 So. 3d at 1223.

Subsequently, in Rodriguez, we quashed the Third District’s decision and held that

certiorari review was improperly used in that case, after analyzing both

“irreparable harm” and “departure from the essential requirements of law.”

Rodriguez v. Miami-Dade Cnty., 117 So. 3d 400, 404-06 (Fla. 2013). We further

stressed that Rodriguez involved essential factual disputes that are not

appropriately addressed through a petition for a writ of certiorari. Id. at 402.

      After our decision in Rodriguez was final, we issued an order to show cause

in this case requesting that the parties respond as to why the First District’s

decision in this case should not be quashed based on our decision in Rodriguez.

While conceding that Rodriguez is dispositive as to the First District’s decision, the

City urges this Court to accept review and determine that Florida Rule of Appellate

Procedure 9.130, which enumerates the types of nonfinal orders that district courts

may review, should be expanded to encompass orders determining, as a matter of

law, whether a party is entitled to immunity based on sovereign immunity. The

City stresses that, in contrast to Rodriguez, this case involves a pure legal question




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turning on whether the allegations of negligence against the City concern

discretionary, planning-level decisions.

       Significantly, in deciding whether to accept review in this case, it is

important to point out that the Florida Bar Appellate Court Rules Committee has

already submitted a proposed amendment to rule 9.130, which has been addressed

in In re Amendments to Florida Rule of Appellate Procedure 9.130, No. SC13-

1493 (Fla. Nov. 13, 2014), and answers the question that the City asks this Court to

confront in this case. This amendment permits district courts to review nonfinal

orders of decisions determining entitlement to sovereign immunity where the case

involves a pure legal question.

      In this case, the First District concluded that the City’s claim to sovereign

immunity rested on a pure question of law. We agree. Because this case falls

squarely within the new rule amendment, we determine that the City should be

entitled to the benefit of the new rule. This procedure is similar to the procedure

that we followed in Keck v. Eminisor, 104 So. 3d 359, 366 (Fla. 2012), where this

Court held that the defendant’s claim of individual immunity should be subject to

interlocutory review by a narrow amendment to rule 9.130, as opposed to utilizing

a common law writ of certiorari. Accordingly, we remanded the case for

proceedings consistent with our opinion and requested the Florida Bar Appellate

Court Rules Committee to submit a proposed amendment that would address the


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rule change mandated by our decision in Keck. See also Tucker v. Resha, 648 So.

2d 1187, 1190 (Fla. 1994) (agreeing with the district court’s conclusion that

Florida’s appellate rules at the time did not provide for interlocutory review of the

nonfinal order and amending the appellate rules immediately to permit

interlocutory review of a claim of qualified immunity to the extent that the order

turns on an issue of law); Mandico v. Taos Constr., Inc., 605 So. 2d 850, 855 (Fla.

1992) (quashing the decision to the extent that the district court addressed the legal

issue through an improper extraordinary writ, but declaring that the rules of

appellate procedure must be amended immediately and approving the decision to

dismiss the suit).

      Here, Beach Community Bank filed an action against the City of Freeport,

asserting that the City failed to ensure a real estate developer posted an adequate

security for completion of the infrastructure and failed to conduct a reasonable

investigation to ascertain the authenticity and adequacy of the letter of credit,

including whether the bank that issued the letter of credit was financially able to

pay the letter of credit if it were called. The City moved to dismiss the complaint,

asserting that the City did not owe Beach Community Bank any duty of care as to

its claim and even if a duty existed, the City had complied with its own Land

Development Code (LDC) so requesting additional acts beyond that explicitly

required by the LDC was a challenge to the City’s policy-making, planning-level


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decisions, to which sovereign immunity applies. The First District held that the

City was entitled to sovereign immunity, resolving that question of law as follows:

              The Bank’s complaint alleged that, having adopted a provision
      in its LDC giving the City the authority to require the developer to
      post security to ensure completion of the Riverwalk development, and
      in fact having required such security in this case, the City negligently
      enforced its LDC by failing to conduct a reasonable investigation into
      the adequacy of the security posted by the developer. Specifically, the
      complaint alleged that the City was negligent by failing to conduct
      any investigation of DC Capital to determine the authenticity of the
      letter of credit and by further failing to investigate DC Capital’s
      financial ability to pay if the letter of credit was called.
              To answer the question of whether sovereign immunity bars
      this action, it is necessary to determine whether the negligence alleged
      by the Bank relates to a discretionary or operational function of
      government. In this context, a “discretionary,” planning-level
      function involves “an exercise of executive or legislative power such
      that a court’s intervention by way of tort law would inappropriately
      entangle the court in fundamental questions of policy and planning.”
      Mosby v. Harrell, 909 So. 2d 323, 328 (Fla. 1st DCA 2005). An
      “operational” function, on the other hand, “is one not necessary to or
      inherent in policy or planning, that merely reflects a secondary
      decision as to how those policies or plans will be implemented.”
      Dep’t of Health & Rehabilitative Servs. v. B.J.M., 656 So. 2d 906,
      911 n.4 (Fla. 1995); Mosby, 909 So. 2d at 328. Operational decisions
      are not immune. Trianon Park Condo. Ass’n v. City of Hialeah, [468
      So. 2d 912, 924 (Fla. 1985)]. “Functionally, the discretionary-versus-
      operational test is intended to determine where, in the area of
      governmental processes, orthodox tort liability stops and the act of
      governing begins.” Wallace [v. Dean, 3 So. 3d 1035, 1044 (Fla.
      2009)] (internal quotations omitted).
              The City asserts it is immune from suit because its decisions
      concerning how it allocates its resources, enforces its laws, and
      protects the public are matters usually protected from judicial
      interference. See Trianon Park Condo. Ass’n, 468 So. 2d at 918-20
      (“[C]ertain discretionary functions of government are inherent in the
      act of governing and are immune from suit.”). In Carter v. City of
      Stuart, 468 So. 2d 955, 957 (Fla. 1985), the Florida Supreme Court

                                       -5-
      held that a city’s discretionary choice to enforce laws, including the
      priority and manner of enforcement, is a planning-level, judgmental
      decision for which the government is immune from liability.
      Applying this principle to the facts of the case, the Carter court
      determined that the amount of resources and number of employees to
      be allocated to the enforcement of an “animal control” ordinance were
      municipal “policy decisions” over which the city had the right to set
      priorities regarding whether or not to enforce its ordinance. Id.
              By analogy to Carter, the City, as the sovereign, asserts its right
      to enforce its own LDC, to enforce it partly, or not to enforce it at all.
      The City had the right to decide what level of compliance was
      sufficient and how much, if any, of its limited resources should be
      allocated to enforcing compliance by a developer putting up security
      for an approved development. . . .
              As a matter of policy, the City had the right to decide it would
      require developers to post security. In so doing, the LDC obliged the
      City to approve as adequate the amount of the security, which is
      calculated based on the criterion expressed in the LDC. The Bank
      does not challenge the amount of the security posted. The City’s
      decision that receipt of a written guarantee of security was sufficient
      compliance with the LDC falls within a municipality’s inherent,
      fundamental policy-making authority. Regardless of its wisdom, the
      City’s decision not to dedicate resources towards fraud prevention by
      investigating the authenticity of the security or the financial solvency
      of its backer, was a policy decision that we are not permitted to
      second-guess.

Beach Community Bank, 108 So. 3d at 690-91. We agree that the City was

entitled to sovereign immunity regarding the question presented here.

      The amendment to rule 9.130 covers this exact scenario pertaining to a

nonfinal order denying a sovereign immunity defense as a matter of law.

Accordingly, we accept jurisdiction and quash the decision below to the extent that

the First District relied on Rodriguez to review the question based on a writ of

certiorari. However, because the amendment addressed in In re Amendments to

                                         -6-
Florida Rule of Appellate Procedure 9.130, No. SC13-1493, covers this exact

scenario pertaining to a nonfinal order denying a sovereign immunity defense as a

matter of law, and because we approve the opinion below as it relates to whether

the City was entitled to sovereign immunity in this case, we remand this case for

further proceedings consistent with this opinion. See, e.g., Mandico, 605 So. 2d at

855 (following a similar procedure where the Florida Rules of Appellate Procedure

were amended after the district court addressed the legal issue through the

improper use of an extraordinary writ).

      It is so ordered.

LABARGA, C.J., and PARIENTE, QUINCE, and PERRY, JJ., concur.
LEWIS, J., concurs in part and dissents in part with an opinion.
CANADY and POLSTON, JJ., concur in result only.

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

LEWIS, J., concurring in part and dissenting in part.

      I agree with the majority to the extent that the decision below be quashed

based upon reliance on Miami-Dade County v. Rodriguez, 67 So. 3d 1213 (Fla. 3d

DCA 2011). However, I dissent with regard to the retroactive application of a

significant Court opinion directed rule change.

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

      First District - Case No. 1D12-3415


                                          -7-
     (Walton County)

Steven Brownlow Bauman and Jeffrey Leonard Burns of Anchors Smith Grimsley,
Fort Walton Beach, Florida,

     for Petitioner

Scott J. Seagle and Gwendolyn Palmer Adkins of Coppins Monroe Adkins &
Dincman, P.A., Tallahassee, Florida,

     for Respondent




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