Opposition Brief — Johanna Beanblossom, Petitioner v. Bay District Schools
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No. 19-7064
In The
Supreme Court of the United States
Johanna Beanblossom,
Petitioner,
v.
Bay District Schools,
Respondent.
On Petition For A Writ Of Certiorari
To The Supreme Court of Florida
APPENDIX TO
RESPONDENT’S BRIEF IN OPPOSITION
HEATHER K. HUDSON
COUNSEL OF RECORD
HAND ARENDALL
HARRISON SALE LLC
304 Magnolia Avenue
Panama City, FL 32401
Telephone: (850) 769-3434
hhudson@handfirm.com
D. ROSS MCCLOY, JR.
304 Magnolia Avenue
Panama City, FL 32401
Telephone: (850) 769-3434
rmccloy@handfirm.com
1a
Florida Supreme Court Proceedings
Order Denying petition for review .......................................................... 2a
Respondent’s Brief in Opposition............................................................ 3a
Petitioner’s Amended Brief on Jurisdiction.......................................... 19a
First District Court of Appeal Proceedings
Order Denying Rehearing ..................................................................... 33a
Order Denying Rehearing ..................................................................... 34a
Opinion on Merits.................................................................................. 35a
Order on Attorneys’ Fees ...................................................................... 39a
Order on Attorneys’ Fees ...................................................................... 40a
Reply Brief of Appellant ........................................................................ 41a
Answer Brief of Appellee ....................................................................... 49a
Initial Brief of Appellant ..................................................................... 102a
Order of Dismissal............................................................................... 135a
Trial Court Proceedings
Order Granting in Part Defendant’s Motion for Attorney’s Fees
and Costs ............................................................................................. 124a
Order Denying Plaintiff’s Motion for Rehearing ................................ 126a
Order Granting Defendant’s Amended Motion for Summary Final
Judgment as to Count II of Plaintiff’s Complaint and Denying Plaintiff’s
Motion to Amend Complaint ............................................................... 132a
Order Denying Plaintiff’s Motion for Rehearing ................................ 136a
Order Granting Defendant’s Motion for Summary Final Judgment as to
Count I of Plaintiff’s Complaint .......................................................... 137a
2a
Supreme Court of Florida
WEDNESDAY, JULY 10, 2019
CASE NO.: SC19-455
Lower Tribunal No(s).:
1D17-980;
032013CA002015CAXXXX
JOHANNA BEANBLOSSOM
Petitioner(s)
vs.
BAY DISTRICT SCHOOLS, ETC.
Respondent(s)
This cause having heretofore been submitted to the Court on jurisdictional
briefs and portions of the record deemed necessary to reflect jurisdiction under
Article V, Section 3(b), Florida Constitution, and the Court having determined that
it should decline to accept jurisdiction, it is ordered that the petition for review is
denied.
No motion for rehearing will be entertained by the Court. See Fla. R. App.
P. 9.330(d)(2).
POLSTON, LABARGA, LAWSON, LUCK, and MUÑIZ, JJ., concur.
A True Copy
Test:
db
Served:
HEATHER K. HUDSON
D. ROSS MCCLOY JR.
CASEY J. KING
CECILE M. SCOON
HON. JAMES BALL FENSOM, JUDGE
HON. BILL KINSAUL, CLERK
HON. KRISTINA SAMUELS, CLERK
Filing # 89985629 E-Filed 05/22/2019 05:42:00 PM
3a
IN THE SUPREME COURT OF FLORIDA
Case No. SC19-455
LT Case No. 1D17-0980
JOHANNA BEANBLOSSOM,
Petitioner,
RECEIVED, 05/22/2019 05:42:29 PM, Clerk, Supreme Court
v.
THE SCHOOL BOARD OF
BAY COUNTY, FLORIDA,
Respondent.
ON REVIEW FROM THE DISTRICT COURT OF APPEAL
FIRST DISTRICT OF FLORIDA
RESPONDENT’S BRIEF ON JURISDICTION
HEATHER K. HUDSON
Florida Bar No.: 0091178
hhudson@HSMcLaw.com
D. ROSS MCCLOY, JR.
Florida Bar No.: 262943
rmccloy@HSMcLaw.com
HAND ARENDALL
HARRISON SALE LLC
Post Office Drawer 1579
Panama City, FL 32401
Telephone: (850) 769-3434
Secondary Email: bhalley@HSMcLaw.com
Attorneys for Respondent
4a
TABLE OF CONTENTS
TABLE OF CONTENTS ........................................................................................... i
TABLE OF CITATIONS ......................................................................................... ii
Cases ................................................................................................................ ii
Statutes............................................................................................................ iv
Other Authorities ............................................................................................ iv
STATEMENT OF THE CASE AND FACTS ..........................................................1
SUMMARY OF THE ARGUMENT ........................................................................2
ARGUMENT AND CITATIONS TO AUTHORITY ..............................................3
I. Holding that litigants are not entitled to futile amendments is not in conflict
with Florida law. .........................................................................................3
II. Holding that Beanblossom’s proposed amendment was futile is not in
conflict with Florida law. ...........................................................................7
CONCLUSION ..........................................................................................................9
CERTIFICATE OF SERVICE ................................................................................10
CERTIFICATE OF COMPLIANCE .......................................................................11
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TABLE OF CITATIONS
Cases
Adams v. Knabb Turpentine Co., Inc.,
435 So. 2d 944 (Fla. 1st DCA 1983) ..............................................................7
Beanblossom v. Bay Dist. Sch.,
265 So. 3d 657 (Fla. 1st DCA 2019). .................................................... 1, 2, 8
Bill Williams Air Conditioning & Heating, Inc. v. Haymarket Co-op. Bank,
592 So. 2d 302 (Fla. 1st DCA 1991) ..............................................................7
Boca Burger, Inc. v. Forum,
912 So. 2d 561 (Fla. 2005) .........................................................................4, 6
Bouldin v. Okaloosa County,
580 So. 2d 205 (Fla. 1st DCA 1991) ..............................................................7
Boyce v. Andrew,
510 F.3d 1333 (11th Cir. 2007)......................................................................9
Bryant v. State,
901 So. 2d 810 (Fla. 2010) .............................................................................5
Connick v. Myers,
461 U.S. 138 (1983)....................................................................................8, 9
Dausman v. Hillsborough Area Reg'l Transit,
898 So. 2d 213 (Fla. 2d DCA 2005) ...............................................................6
Dimick v. Ray,
774 So. 2d 830 (Fla. 4th DCA 2000)..............................................................6
Florida Nat. Org. for Women, Inc. v. State,
832 So. 2d 911 (Fla. 1st DCA 2002) ..............................................................7
Garcetti v. Ceballos,
547 U.S. 410 (2006)........................................................................................9
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Gate Lands Co. v. Old Ponte Vedra Beach Condo.,
715 So. 2d 1132 (Fla. 5th DCA 1998) ............................................................6
Highlands County Sch. Bd. v. K. D. Hedin Const., Inc.,
382 So. 2d 90 (Fla. 2d DCA 1980) .................................................................7
Kay's Custom Drapes, Inc. v. Garrote,
920 So. 2d 1168 (Fla. 3d DCA 2006) .............................................................4
Kohn v. City of Miami Beach,
611 So. 2d 538 (Fla. 3d DCA 1992) ...............................................................6
Levine v. Dade County Sch. Bd.,
442 So. 2d 210 (Fla. 1983). ............................................................................8
Maggio v. Sipple,
211 F.3d 1346 (11th Cir. 2000) ......................................................................9
Matson v. Tip Top Grocery Co.,
9 So. 2d 366 (Fla. 1942) .................................................................................5
Morgan v. Bank of New York Mellon,
200 So. 3d 792 (Fla. 1st DCA 2016). .............................................................3
Pickering v. Board of Education,
391 U.S. 563 (1968)....................................................................................8, 9
Reaves v. State,
485 So. 2d 829 (Fla. 1986). ............................................................................3
Slay v. Hess,
621 Fed. Appx. 573 (11th Cir. 2015) .............................................................9
Sonny Boy, L.L.C. v. Asnani,
879 So. 2d 25 (Fla. 5th DCA 2004)............................................................5, 6
Sorenson v. Bank of New York Mellon as Tr. for Certificate Holders CWALT, Inc.,
261 So. 3d 660 (Fla. 2d DCA 2018), reh'g denied (Jan. 8, 2019)..................4
Thompson v. Bank of New York,
862 So. 2d 768 (Fla. 4th DCA 2003)..............................................................5
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Yun Enterprises, Ltd. v. Graziani,
840 So. 2d 420 (Fla. 5th DCA 2003)..............................................................6
Statutes
§ 1001.40, Fla. Stat ....................................................................................................1
§ 112.3187, Fla. Stat. .................................................................................................1
§ 768.28, Fla. Stat. .................................................................................................2, 8
Other Authorities
Art. V, § 3(b)(3), Fla. Const.......................................................................................3
Fla. R. App. P. 9.210(a)(2).......................................................................................11
Fla. R. Civ. P. 1.190 ...............................................................................................3, 4
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STATEMENT OF THE CASE AND FACTS
Johanna Beanblossom initiated this litigation against her former employer, the
School Board of Bay County, Florida1 (the “School Board”), in December 2013.
Beanblossom v. Bay Dist. Sch., 265 So. 3d 657, 658 (Fla. 1st DCA 2019), reh'g
denied (Feb. 15, 2019). Beanblossom filed a two-count complaint alleging a
whistle-blower claim under § 112.3187, Fla. Stat. and a negligent retention claim.
Id. The School Board obtained summary judgment against both counts—despite
Beanblossom’s response filed “on the morning of the hearing” regarding Count I,
her “plainly meritless arguments” filed in the days leading up to the summary
judgment hearing on Count II, and her 11:34 p.m. motion for leave to amend filed
the night before the hearing on the School Board’s motion as to Count II. Id.
The trial court also denied Beanblossom’s motion for leave to amend her
complaint and introduce “an additional defendant and assert four counts, including
another negligence claim based on a different factual theory and a claim asserting a
First Amendment violation.” Id. The trial court viewed the motion to amend as “an
attempt to circumvent summary judgment and escape the effects of failing to comply
Beanblossom uses “Bay District Schools” and “The School Board of Bay County,
Florida” interchangeably in this litigation and changed the style of this case on
appeal. Compare, e.g., “Notice of Discretionary Jurisdiction” filed March 18, 2019
and Petitioner’s Amended Brief on Jurisdiction filed April 23, 2019. Respondent
continues its consistent use of the proper legal name pursuant to § 1001.40, Fla. Stat.
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with section 768.28 despite being aware of the statute and having time to cure well
within the statutory period.” Id.
Beanblossom appealed the summary judgment against the negligent retention
claim and the denial of her motion to amend. The First District Court of Appeal
found no error in the order granting summary judgment. Id. at 658 n.1. Nor did the
First District find any abuse of discretion in the denial of Beanblossom’s belated
motion to amend—the First District found the claims in the proposed amended
complaint futile. Id. at 659.
The First District noted that Beanblossom’s new theory of negligence against
the School Board “suffers the same notice defect as her prior claim” and that “her
First Amendment claim—that she was retaliated against for speaking as a citizen
when making complaints to various school district personnel—is futile because she
did not speak as a citizen.” Id. Accordingly, the court held that there was no abuse
of discretion in denying proposed amendments that would have been futile and,
based upon that finding, there was no need to address whether the amendment would
have caused prejudice or constituted abuse. Id. at 659 n.2.
SUMMARY OF THE ARGUMENT
There is no basis for review by this Court because there is no conflict. No
Florida court has held that the right to amend is so unlimited that a plaintiff who
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injects new, futile, causes of action on the eve of summary judgment is entitled to
amend and left no discretion to the trial court. Review should be denied.
ARGUMENT AND CITATIONS TO AUTHORITY
Beanblossom seeks review of the First District’s opinion by asserting that it
“expressly and directly conflicts with a decision of another district court of appeal
or of the supreme court on the same question of law.” Art. V, § 3(b)(3), Fla. Const.
Such a conflict “must be express and direct” and “appear within the four corners of
the majority decision.” Reaves v. State, 485 So. 2d 829, 830 (Fla. 1986).
I.
Holding that litigants are not entitled to futile amendments is not
in conflict with Florida law.
There is no disputing the policy of liberality in allowing litigants to amend
pleadings under the Florida Rules of Civil Procedure. See Fla. R. Civ. P. 1.190
(“Leave of court shall be given freely when justice so requires.”). However, upon
finding one of three bases for denial, it is within a trial court’s discretion to deny a
motion to amend. Morgan v. Bank of New York Mellon, 200 So. 3d 792, 795 (Fla.
1st DCA 2016). A motion to amend may be denied when: (1) “allowing the
amendment would prejudice the opposing party,” (2) “the privilege to amend has
been abused,” or (3) “amendment would be futile.” Id. (internal citations and
quotation marks omitted).
In the face of a First District order finding no abuse of discretion solely
because Beanblossom’s proposed amended complaint was futile, Beanblossom
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seeks review from this Court by arguing the fundamental tenets of liberal
amendment and largely ignores the issue of futility.
The First District’s order based on the futility of Beanblossom’s proposed
amendment is perfectly in harmony with the jurisprudence of this state.
Beanblossom points to no opinion from any Florida court with which the First
District is in direct conflict.2 Perhaps that is because every Florida District Court of
Appeal has promulgated opinions stating the well-known standard that a motion to
amend may be denied if any of the three bases are demonstrated. See, e.g., Sorenson
v. Bank of New York Mellon as Tr. for Certificate Holders CWALT, Inc., 261 So. 3d
660, 663 (Fla. 2d DCA 2018), reh'g denied (Jan. 8, 2019) (stating same standard and
allowing amendment based, in part, on finding no indication that amendment would
be futile); Kay's Custom Drapes, Inc. v. Garrote, 920 So. 2d 1168, 1171 (Fla. 3d
DCA 2006) (stating same standard and noting no argument was raised that
2
Although Beanblossom devotes an entire page of her Amended Brief on
Jurisdiction (p. 8) to quoting this Court’s opinion in Boca Burger, Inc. v. Forum, 912
So. 2d 561 (Fla. 2005), as revised on denial of reh'g (Sept. 29, 2005), that opinion
has absolutely no application. Beanblossom fails to acknowledge that there are two
distinct avenues of amendment laid out in Rule 1.190(a). “[B]y its terms the rule
provides for amendment as of right (first sentence) and amendment by agreement or
leave of court (second sentence).” Boca Burger, Inc. 912 So. 2d at 567. The Boca
Burger opinion focused entirely on the first sentence—amended prior to a
responsive pleading. Id. at 563. Beanblossom’s motion was not filed prior to the
School Board’s answer. In fact, it was filed years later—at 11:54 p.m. the night
before the hearing on the School Board’s motion for summary judgment—and was
therefore subject to the second sentence of the rule, which requires either “leave of
court” or “written consent of the adverse party.” See Fla. R. Civ. P. 1.190(a).
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amendment would be futile); Thompson v. Bank of New York, 862 So. 2d 768, 770
(Fla. 4th DCA 2003) (stating same standard and affirming denial of motion to amend
based on finding proposed amendment was futile as insufficiently pled); Sonny Boy,
L.L.C. v. Asnani, 879 So. 2d 25, 29 (Fla. 5th DCA 2004) (stating same standard and
affirming denial of motion to amend where proposed amendment would not have
cured deficiencies).
This Court has also endorsed this statewide standard. In Bryant v. State, 901
So. 2d 810 (Fla. 2010), while reviewing the handling of a postconviction motion in
the criminal arena, the Court noted that “[i]n the civil context, dismissing a complaint
without granting at least one opportunity to amend is considered an abuse of
discretion unless the complaint is not amendable.” Id. at 818 (emphasis added).3
This Court went on to quote with approval a Fifth District opinion which laid
out the same standard for denying a motion to amend when “allowing the
amendment would prejudice the opposing party; the privilege to amend has been
The School Board’s research suggests that the genesis of the District Courts’
creation of the futility rule may be traceable back to this Court’s opinion in Matson
v. Tip Top Grocery Co., 9 So. 2d 366, 368 (Fla. 1942), which concluded:
3
If the plaintiff could have made a stronger case by amending she could
have proffered such amendment by appropriate motion. Failing to do so,
we will not hold the lower court in error for not allowing further
amendment to the declaration. Furthermore, it appears to us as it did to the
lower court that plaintiff had fully stated the ultimate facts of her case and
further amendments could have disclosed no other or different facts.
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abused; or amendment would be futile.” Id. (quoting Sonny Boy, L.L.C. v. Asnani,
879 So. 2d 25, 27–28 (Fla. 5th DCA 2004)). In Sonny Boy, L.L.C., the Fifth District
upheld the trial court’s denial of an ore tenus motion to amend because the requested
amendment would not have cured the fatal defect. See 879 So. 2d at 29.
Furthermore, every opinion Beanblossom relies upon is either entirely
inapplicable or provides an exception for complaints that are futile. See, e.g, Boca
Burger, Inc. v. Forum, 912 So. 2d 561 (Fla. 2005), as revised on denial of reh'g
(Sept. 29, 2005) (entirely inapplicable, as discussed in footnote 2 above); Dausman
v. Hillsborough Area Reg'l Transit, 898 So. 2d 213 (Fla. 2d DCA 2005) (allowing
amendment where plaintiff merely amended to change from private to public
whistle-blower claim under same facts and futility not questioned); Yun Enterprises,
Ltd. v. Graziani, 840 So. 2d 420, 423 (Fla. 5th DCA 2003) (noting that denial of
leave to amend would be permissible if amendment was futile, but finding that
proposed amendment “resolve[d] the discrepancies” at issue); Dimick v. Ray, 774
So. 2d 830, 835 (Fla. 4th DCA 2000) (holding that amendment was not futile—not
that a futile amendment would have been allowed); Gate Lands Co. v. Old Ponte
Vedra Beach Condo., 715 So. 2d 1132, 1135 (Fla. 5th DCA 1998) (noting exception
to general rule if amendment would be futile); Kohn v. City of Miami Beach, 611 So.
2d 538 (Fla. 3d DCA 1992) (ruling on entirely inapplicable issues); Bill Williams
Air Conditioning & Heating, Inc. v. Haymarket Co-op. Bank, 592 So. 2d 302, 305
6
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(Fla. 1st DCA 1991) (stating exception for futile amendments and finding proposed
amendment not futile); Bouldin v. Okaloosa County, 580 So. 2d 205, 207 (Fla. 1st
DCA 1991) (noting that denying leave to amend would have been warranted if
complaint was “clearly not amendable” but finding complaint could have been
further amended to cure deficiencies); Adams v. Knabb Turpentine Co., Inc., 435 So.
2d 944, 946 (Fla. 1st DCA 1983) (stating exception to general rule for complaints
which are “clearly not amendable” and noting complaint appeared curable by
amendment); and, Highlands County Sch. Bd. v. K. D. Hedin Const., Inc., 382 So.
2d 90, 91 (Fla. 2d DCA 1980) (noting exception when “complaint is clearly not
amendable” and explaining how plaintiff’s complaint was amendable). And finally,
Beanblossom’s citation to Florida National Organization for Women, Inc. v. State,
832 So. 2d 911, 915 (Fla. 1st DCA 2002) demonstrates that the instant opinion is not
unique or conflicting. In Florida National, the First District held that “leave to
amend may be denied ‘where the proposed amendment would be futile’” and
affirmed the trial court’s denial of leave to amend because the plaintiffs “cannot
amend the count to state a viable claim.” Id.
II.
Holding that Beanblossom’s proposed amendment was futile is not
in conflict with Florida law.
Beanblossom points to no opinion of a Florida Court which conflicts with the
First District’s holding that Beanblossom’s proposed amendment was futile. The
two sentences Beanblossom spent attempting to refute the First District’s finding of
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futility are incomprehensible and entirely devoid of citation to authority.
(Petitioner’s Amended Brief, p. 7). Nevertheless, the School Board addresses the
issue of futility herein to further demonstrate that the District Court’s opinion is not
in conflict.
The First District held that Beanblossom’s new theory of negligence against
the School Board was futile because the claim suffered the “same notice defect” as
her prior negligence claim that was defeated for her counsel’s refusal to cure the
failure to serve § 768.28, Fla. Stat. pre-suit notice despite being put on notice well
within the statutory period. Beanblossom v. Bay Dist. Sch., 265 So. 3d at 658, 659.
To hold that a claimant’s right to bring an action is forfeited when the claimant fails
to timely comply with this pre-suit notice requirement is entirely consistent with
Florida law. See Levine v. Dade County Sch. Bd., 442 So. 2d 210, 213 (Fla. 1983).
Lastly, the First District held that Beanblossom’s “First Amendment claim—
that she was retaliated against for speaking as a citizen when making complaints to
various school district personnel—is futile because she did not speak as a citizen.”
Beanblossom v. Bay Dist. Sch., 265 So. 3d at 659 (internal citations omitted).
Beanblossom points to no opinions in this state which conflict with this conclusion.
As a government employee, Beanblossom did not enjoy an absolute right to
freedom of speech; instead, Beanblossom’s speech would only be constitutionally
protected if it satisfied the “Pickering–Connick test,” which, as a threshold matter
8
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requires that “the speech must be fairly characterized as constituting speech on a
matter of public concern.” Maggio v. Sipple, 211 F.3d 1346, 1351 (11th Cir. 2000)
(internal quotation marks omitted) (quoting Pickering v. Board of Education, 391
U.S. 563, 568 (1968); Connick v. Myers, 461 U.S. 138, 146 (1983)).
It is well-settled that “when public employees make statements pursuant to
their official duties, the employees are not speaking as citizens for First Amendment
purposes.” Garcetti v. Ceballos, 547 U.S. 410, 421 (2006); see also, Slay v. Hess,
621 Fed. Appx. 573, 575 (11th Cir. 2015) (quoting Boyce v. Andrew, 510 F.3d 1333,
1343 (11th Cir. 2007) (“In complaining to her superiors at work about how time was
allotted, she was speaking as an employee, and when a government employee speaks
as an employee ‘there can be no First Amendment issue, and the constitutional
inquiry ends.’”). The First District’s holding that Beanblossom’s statements made
pursuant to her official duties were not speech on a matter of public concern, and
were therefore not constitutionally protected, does not conflict with existing law.
CONCLUSION
No Florida court has ever concluded that it is an abuse of discretion to deny a
motion to amend when amendment would be futile. There is no conflict warranting
review by this Court and the School Board asks that review be declined.
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been
furnished by electronic mail to Cecile Scoon, Esq., Peters and Scoon, at
cmscoon1@knology.net; cmscoon2@knology.net, this 22nd day of May, 2019.
IJÉAYH ER K. HU osoW
Florida Bar No.: 0091178
D. Ross McCLOY, JR.
Florida Bar No.: 262943
HAND ARENDALL
HARRISON SALE LLC
Post Office Drawer 1579
Panama City, FL 32401
Telephone: (850) 769-3434
Attorneys for Respondent
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CERTIFICATE OF COMPLIANCE
I HEREBY CERTIFY that the foregoing Respondent's Brief on Jurisdiction
was prepared using Times New Roman 14-point font in compliance with Florida
Rule of Appellate Procedure 9.210(a)(2).
HT TilER K. HU D 'oY
Florida Bar No.: 0091178
D. Ross McCLOY, JR.
Florida Bar No.: 262943
HAND ARENDALL
HARRISON SALE LLC
Post Office Drawer 1579
Panama City, FL 32401
Telephone: (850) 769-3434
Attorneys for Respondent
11
Filing # 88353825 E-Filed 04/23/2019 01:41:09 AM
19a
IN THE SUPREME COURT OF APPEAL
STATE OF FLORIDA
Case No. SC19-455
1DCA- 1D17-0980
RECEIVED, 04/23/2019 01:41:33 AM, Clerk, Supreme Court
Lower Tribunal No. 13002015
JOHANNA BEANBLOSSOM
Petitioner,
vs.
BAY DISTRICT SCHOOLS.
RESPONDENT
APPEALED FROM
THE FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
PETITIONER'S AMENDED BRIEF ON
JURISDICTION
Cecile M. Scoon,
Attorney for
Petitioner
FL. Bar #834556
Peters & Scoon,
Attorneys at Law
25 East 8th Street
Panama City, FL 32401
Tel:(850) 769-7825
20a
TABLE OF CONTENTS
Page#
,
,
Table of Contents-------------------------------------------------------i
_
Table of Citations-------------------------------------------ii
Statement of the Case and Facts-------------------------1
Summary of the Argument-----------------------------4
Argument----------------,-----------------------------4
I. IS TRIAL JUDGE REQUIRED TO CONSTRUE
FACTS AND EVIDENCE IN LIGHT MOST
FAVORABLE TO PLAINTIFF SEEKING TO AMEND-----4
I I. ARE PLAINTIFFS ENTITLED TO
AT LEAST ONE AMENDMENT OF THE
COMPLAINT WHEN FACTS ARE THE SAME--------7
Conclusion----------------------------------------------------
10
Certificate of Service-------------------.-- ---------------------------------
iv
Certificate of Compliance---------------------------------------------
iv
(i)
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TABLE OF CITATIONS
Adams v. Knabb Turpentine Co., 435 So. 2d 944, 946 (Fla. 1st DCA 1983) ---5,7
Bill Williams Air Conditioning & Heating, Inc. v. Haymarket Co-Op. Bank, 592
So. 2d 302 (Fla. 1st DCA 1991), rev. dismissed, 598 So. 2d 76 (Fla. 1992)----7
Boca Burger, Inc. vs Forum, 912 So 2d 561 (Fl S Ct 2005) ---------------------5,8,9
Brown v Montgomery Ward & Co. 252 So 2d 817 (1DCA 1971) ---------------9
Bouldin v. Okaloosa County, 580 So. 2d 205, 207 (Fla. 1st DCA 1991) -------8
Dimick v Ray, 774 So. 2d 830, (4 DCA 2000) . Condo., ---------------------4,5,8
Dausman v Hillsborough Area Reg’l Transit, 898 So. 2d 213 (2 DCA 2005) —6
Florida National Organization for Women, Inc. v. State of Florida, 832 So. 2d 911,
915 (Fla. 1st DCA 2002) ------------------------------------------------------------------8
Gate Lands Co. v Old Ponte Vedra Beach,715 So 2d 1132 (5 DCA
1998) .--------------------------------------------4, 9
Highlands County Sch. Bd. v. K.D. Hedin Constr., Inc., 382 So. 2d 90, 91 (Fla. 2d
DCA 1980) ----------------------------------------------------------------------------------8
Kohn v. City of Miami Beach, 611 So. 2d 538, 539 (Fla. 3d DCA 1992) ---------8
Noble vs Martin.Mem’l Hosp’ Ass’n, Inc. 710 so 2d 567 (4 DCA 2016) ----------9
Yun Enters., Ltd v Grazani, 840 So. 2d 420 (5 DCA 2003) --------------------4
RULES
FRCP 1.190 (c) -------------------------------------------------------------------------5
FRCP1.190(e) --------------------------------------------------------------------------10
Fla. R. App. P9.030(a) (2) (A) (iv)- --------------------------------------------4, 10
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STATEMENT OF THE FACTS AND THE CASE
1.
The Appellant began her teaching for Bay District Schools on or about
1985. App. R. 241. (1rst Aff Beanblossom Nov ’15)
2.
There were several students in Ms Beanblossom’s classes that would
bully the other students. App. R. 563 (2d Aff Beanblossom May ’16)
3.
In April 2013, Ms. Beanblossom wrote to the Principal and sent a
computer generated report about the bullying to the District office
responsible for stopping and monitoring bullying. App. R. 563-564.
(2d Aff Beanblossom May ’16)
4.
Within about a month after submitting her last report about students being
bullied and lack of administration help to stop the bullying, Ms
Beanblossom was summarily called into her principal’s office and told to
sign her resignation papers. App. R. App. R. 257 (Aff Sheffield).
5.
Ms. Beanblossom was terminated the same day that she was told to resign
her position. App. R 346 (Dep Michalik p 28 line 7 - p 29 line 19).
6.
On the day she was terminated , Ms Beanblossom contacted the School
District’s Human Resources Office and applied for a
substitute teacher position. App. R. 242 (1rst Aff Beanblossom para 10)
7.
Ms. Beanblossom was ready to be hired to be a substitute teacher and that all
paperwork was in place for her to start doing substitute teacher work immediately. App.
R. 242 (1rst Aff Beanblossom para 10)
1.
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7.
. Beanblossom filed a lawsuit complaining that she was wrongfully
terminated in retaliation in violation of FS 112.3187. App. R. 011-031.
Respondent’s Human Resources Manager stated in depositions that Ms
Beanblossom’s chances for employment at the school board would
improve if she dismissed her lawsuit. App. R. 355 (Dep Michlaik p 78
line 21-25).
9.
Ms. Beanblossom has applied numerous times for School District
employment for positions that she is qualified for that are difficult to fill
because there is a critical shortage of teachers that are qualified to fill the
positions. App. R. 243 ( 1rst Aff Beanblossom para 12-13)
10. Ms. Beanblossom has applied for over sixty jobs with Bay District
Schools that she was qualified for but she did not receive the position.
App. R. 243 (1rst Aff Beanblossom para 12-13)
11.
The School District also filed a complaint with the Department of
Education against Ms. Beanblossom alleging that she treated children
differently based on race, but this determined to be unfounded. App. R.
243 (1rst Aff Beanblossom para 14)
12.
Petitioner filed a motion to Compel discovery Responses from
Respondent who failed to provide the responses for about a year.
2.
24a
13.
In her Response to the Motion for Summary Judgment Petitioner also
sought leave to amend her initial whistleblower retaliation and
negligent supervision complaint to add a claim for First Amendment
retaliation violation under color of state law, 42 USC 1983. App. R.
68- 690. Plaintiff described the additional counts to be added.
14.
On November 7, 2016, Appellant filed a separate Motion for Leave to
Amend attaching the proposed complaint. App. R. 698-739
15.
On January 5 2017, the court denied the motion to amend and granted
the motion for summary judgment. App. R. 763
16.
On January 20, 2017, Appellant filed a Motion for Rehearing. App.
R. 782- 792.
17.
On February 7, 2017, The Court denied the motion for rehearing.
App. R. 797.
18.
Appellant filed her Notice for of Appeal on March 8, 2017, App. R. 837-847.
19.
Order Affirming Trial Court Order dated 14 Jan 2019
20.
Motion for Rehearing Denied
21.
Notice of Conflict Jurisdiction filed and dated 18 February 2019
3.
25a
SUMMARY OF THE ARGUMENT
It is well established that amendments are to be liberally granted. In fact, it
is the norm that plaintiffs are almost always given multiple opportunities to
amend, even on the eve of trial, and even after a motion for summary judgment
has been granted. Dimick v Ray, 774 So. 2d 830, (4 DCA 2000).
Therefore, Petitioner contends that the trial court’s denial of motion to
amend was in direct conflict of well established precedent as set forth in the
First District Court of Appeals and The Supreme court. Petitioner contends
that the trial court's ruling expressly and directly conflicts with a decision of
other district courts of appeal and of the Supreme Court on the same
question of law pursuant to Fla. R. App. P. 9.030(a)(2)(A)(iv). The law
states a first request for an amendment must be granted if the amendment is
based upon the same set of facts and thus there is no prejudice and the
amendment is not futile. Gate Lands Co. v Old Ponte Vedra Beach .
Condominium, 715 So 2d 1132 (5 DCA 1998).
FACTS AND EVIDENCE IN LIGHT MOST
FAVORABLE TO PLAINTIFF SEEKING TO
AMEND
The cornerstone of American jurisprudence is the right to be heard before a jury or a
judge. This fundamental right is enshrined in our American and Floridian concepts of
judicial norms. It is reflected in the rule that all facts and law are to be construed in
4.
26a
favor of the non-moving party with regards to motions to dismiss and motions for
summary judgment. A person or party’s opportunity to be heard is well
protected. This protection of a party’s right to be heard is present with
motions to amend also. It is well established that Plaintiffs are usually
given several opportunities to amend their pleadings. In fact, the actual
rule of civil procedure FRCP 1.190 (c) states that amendments should be
liberally granted.
FRCP 1.190 states: If a party files a motion to amend a pleading,
the party shall attach the proposed amended pleading to the
motion. Leave of court shall be given freely when justice so
requires.
FRCP 1.190 (c) provides that amendments should be liberally allowed. Case law has
established that all doubts should be resolved in favor of the party moving for leave to
amend. In a case where the new count in an amended complaint is entirely based upon the
same facts as a count in the initial complaint, no prejudice or surprise can be claimed. In a
case where there is only one motion for leave to amend a complaint, there is no abuse of
the process. Therefore, in cases such as those, the motion for leave to amend should
always be granted or amendment would be futile. Dimick v Ray, 774 So. 2d 830, (4 DCA
2000).
5.
27a
In the case at bar, the initial complaint contained almost all of the same
elements of a pattern and practice complaint against the state for deprivation of
First Amendment rights under color of law. The initial negligence claim stated
that the School district had a pattern and practice of depriving teachers and
students of their rights by refusal to provide a safe learning environment. App. R.
011-031 (Initial Complaint para 17-20 and 59). In addition, in her initial
complaint, Appellant stated that he practice of failing to provide a safe learning
environment was well known and a common practice. App. R 011- 031.
In addition, a First Amendment claim of retaliation for filing a lawsuit is very much based
on the same facts that supported the whistle blower claim. Again, the Defendant could not
logically claim surprise and prejudice by the addition of a 1rst Amendment whistleblower
claim. Under these circumstances, the school board was well placed on notice of the
alleged retaliation by its agents and the request to amend the complaint to more
specifically name a closely related retaliation action cause of action should have been
authorized. Dausman v Hillsborough Area Reg’l Transit, 898 So. 2d 213 (2 DCA 2005)
(leave to amend should be freely given in general and even more so when the
amendments is based
6.
28a
upon the same conduct or transactions as the original complaint).
II. ARE PLAINTIFFS ENTITLED TO AT
LEAST ONE AMENDMENT OF THE
COMPLAINT WHEN UNDERLYING
FACTS ARE THE SAME
Review of the Florida rules of Civil Procedure, indicates that the trial
court’s order denying an amendment, was an express and direct conflict with
other circuits and the Florida Supreme Court Yun Enters., Ltd v Grazani, 840
So. 2d 420 (5 DCA 2003) (holding a party may with leave of court amend a
pleading after hearing and ruling on a motion for summary judgment) .
The Courts are essentially stating that all motions to amend should be
granted absent repeated misuse of the motion, the facts and legal theory
relied upon in the new count are similar to the first claims. In the case at bar
there was only one proposed amended complaint proffered and the amended
complaint was not futile as Plaintiff had no obligation to file a lawsuit as part of
her official duties and thus her 1rst Amendment claim was viable. In addition,
Petitioner had filed a notice on some later
claims indicating an intent to sue and exhausting her administrative remedies.
7.
29a
The Florida S. Ct. held in Boca Burger, Inc. vs Forum, 912 So 2d 561 (Fl
S Ct 2005):
Although Volpicella implied that a trial court may deny leave to amend
where the complaint is clearly not amendable, a court only has such discretion
under the second sentence of the rule, not under the first. The cases that have
recognized a court's discretion to deny amendment in those circumstances
concerned either a plaintiff's second (or subsequent) amendment or an
amendment requested after the answer was filed. See, e.g., Florida National
Organization for Women, Inc. v. State of Florida, 832 So. 2d 911, 915 (Fla. 1st
DCA 2002) [**17] (holding that where [*568] the plaintiff had amended once
before a responsive pleading had been served and once again after the
defendant filed an answer, the trial court abused discretion in refusing leave to
amend the second amended complaint); Kohn v. City of Miami Beach, 611 So.
2d 538, 539 (Fla. 3d DCA 1992) (holding that the trial court did not abuse its
discretion where the plaintiff failed in four attempts to cure the defects in the
complaint); Bouldin v. Okaloosa County, 580 So. 2d 205, 207 (Fla. 1st DCA
1991) (stating that when a party seeks to amend a complaint after a responsive
pleading has been served, leave should be granted unless the court finds a clear
abuse of the privilege to amend or the complaint is clearly not amendable); see
also Dimick v. Ray, 774 So. 2d 830, 835 (Fla. 4th DCA 2000) (holding that the
trial court abused its discretion in denying motion for leave to amend plaintiff's
first amended complaint); Adams v. Knabb Turpentine Co., 435 So. 2d 944, 946
(Fla. 1st DCA 1983) (same); Highlands County Sch. Bd. v. K.D. Hedin Constr.,
Inc., 382 So. 2d 90, 91 (Fla. 2d DCA 1980) (same).
18] As the Fourth District held, a court has no discretion to deny an amendment
under the first sentence of the rule. A defendant may contest the legal viability of
a first amended complaint by moving to dismiss the amended complaint, not by
contesting the plaintiff's right to amend. We disapprove Volpicella to the extent
it holds that a trial court retains any discretion to deny an amendment under such
circumstances--regardless of whether the plaintiff simply files an amended
complaint or requests leave of court to file one. Id at 568.
8.
30a
Thus Noble vs Martin.Mem’l Hosp’ Ass’n, Inc. 710 so 2d 567 (4 DCA
2016) ( holding that numerous amendments should not be allowed), Brown v
Montgomery Ward & Co. 252 So 2d 817 (1DCA 1971) (holding that when a
trial date is set and numerous leaves to amend granted, summary judgment may
be warranted) that can be easily distinguished from the case at bar. In the case at
bar, there was no trial date set and the Respondent had contributed to the three
years of discovery by failing to provide requested discovery for about a year
which forced Petitioner to file a motion to compel. (App R. 668-676)
In essence, the trial court construed all matters in the light least favorable to
Plaintiff in conflict with the vast majority of Circuit court decisions and the
expressly stated directive of the Florida Supreme Court. Boca. at 568.
"all doubts should be resolved in favor of allowing
amendment. It is the public policy of this state to freely
allow amendments to pleadings so that cases may be
discretion unless it clearly appears that allowing the amendment
would prejudice the opposing party, the privilege to amend has
been abused, or amendment would be futile. Bill Williams
at 305.
Gatelands at 1135
9..
31a
The trial court’s ruling below is in conflict with established precedent
from other circuits and the Florida Supreme Court and represents an express
conflict. This gives the court jurisdiction and Petitioner humbly asks for the
court to accept jurisdiction over this matter pursuant to Fla. R. App. P.
9.030(a)(2)(A)(iv).
V. CONCLUSION
WHEREFORE, Petitioner, contends that this Honorable Court should assert
jurisdiction over this appeal as the first District Court of Appeal order is in direct
conflict with another District case and in conflict with the Florida Supreme Court.
Respectfully submitted, this 23rd day of April 2019.
/s/ Cecile M Scoon
Cecile M. Scoon, Esq Attorney for
Petitioner
Johanna Beanblossom
Peters and Scoon Attnys
FLBar #834556 25 E, 8th St.
Panama City, Fl 32401
Tel:(850)769-7825
fax: 850-215-0963
10.
32a
CERTIFICATE OF SERVICE
Comes now, the attorney for the Petitioner and states that she has filed this
pleading electronically and thereby served opposing counsel of record and
also served it by email to opposing counsel of record.
23 April 2019.
ls/Cecile M Scoon, Esq.
Cecile M. Scoon, Esq.
CERTIFICATE OF COMPLIANCE
The undersigned counsel hereby certifies that this Appellant's Amended Brief
is submitted in Times New Roman 14point font in compliance with the
requirements of Rule 9.210 of the Florida Rules of Appellate Procedure.
Isl Cecile M Scoon, Esq.
Cecile M. Scoon, Esq.
iv
33a
DISTRICT COURT OF APPEAL, FIRST DISTRICT
2000 Drayton Drive
Tallahassee, Florida 32399-0950
Telephone No. (850)488-6151
February 15, 2019
CASE NO.: 1D17-0980
L.T. No.: 13-002015CA
Johanna Beanblossom
v.
Appellant / Petitioner(s),
Bay District Schools, Bay County,
Florida
Appellee / Respondent(s)
BY ORDER OF THE COURT:
Appellant's motion filed January 29, 2019, for rehearing is denied.
I HEREBY CERTIFY that the foregoing is (a true copy of) the original court order.
Served:
Dixon Ross Mccloy Jr.
Heather K. Hudson
th
Cecile M. Scoon
34a
DISTRICT COURT OF APPEAL, FIRST DISTRICT
2000 Drayton Drive
Tallahassee, Florida 32399-0950
Telephone No. (850)488-6151
March 20, 2019
CASE NO.: 1D17-1827
L.T. No.: 13-2015-CA
Johanna Beanblossom
v.
Appellant / Petitioner(s),
The School Board of Bay County,
Florida
Appellee / Respondent(s)
BY ORDER OF THE COURT:
Motion for rehearing en banc and written opinion filed by the appellant on January 29,
2019, is denied.
I HEREBY CERTIFY that the foregoing is (a true copy of) the original court order.
Served:
Dixon Ross McCloy Jr.
Heather K. Hudson
th
Cecile M. Scoon
Casey J. King
35a
FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
No. 1D17-0980
_____________________________
JOHANNA BEANBLOSSOM,
Appellant,
v.
BAY DISTRICT SCHOOLS, BAY
COUNTY, FLORIDA,
Appellee.
_____________________________
On appeal from the Circuit Court for Bay County.
James B. Fensom, Judge.
January 14, 2019
PER CURIAM.
Johanna Beanblossom appeals the denial of her motion for
leave to amend her complaint. Beanblossom argues that the trial
court abused its discretion because she had never previously
sought to amend her complaint, the case was still in the
summary judgment stage, and the amendments were based upon
similar facts. We find no abuse of discretion and affirm.
I.
Beanblossom filed a two-count complaint against Bay
District Schools in December 2013, alleging in Count I a whistleblower claim under section 112.3187, Florida Statutes, and in
Count II a negligent retention claim. The complaint alleged that
36a
Bay District Schools did not properly investigate her complaints,
fired her for making these complaints, and failed to fire the
employee she complained about.
Over a year later, Bay District Schools filed a motion for
summary judgment on Count I and, despite the response
Beanblossom filed on the morning of the hearing almost a year
later, the trial court granted the motion. Beanblossom does not
assert any error as to Count I in this appeal.
Bay District Schools’ answer to Beanblossom’s complaint
alleged as to Count II that Beanblossom failed to comply with
section 768.28(6)(a), Florida Statutes, which requires notice to be
provided to the State prior to bringing an action. Over two years
later, Bay District Schools filed a motion for summary judgment
on Count II on this basis. Beanblossom responded with plainly
meritless arguments as the November 8, 2016, hearing date drew
closer until November 7, at 11:34 p.m., when she filed a motion
for leave to amend her complaint. This proposed amended
complaint would add an additional defendant and assert four
counts, including another negligence claim based on a different
factual theory and a claim asserting a First Amendment
violation. Bay District Schools objected.
After the November 8 hearing, the trial court entered an
order granting Bay District Schools’ motion for summary
judgment as to Count II. The order also denied Beanblossom’s
motion for leave to amend the complaint, finding the following:
Plaintiff’s motion to amend comes three years into
this litigation, after extensive discovery, and on the eve
of a hearing for final summary judgment. This last
minute request appears to be an attempt to circumvent
summary judgment and escape the effects of failing to
comply with section 768.28 despite being aware of the
statute and having time to cure well within the
statutory period. Moreover, the addition of a new
defendant and the [Federal section] 1983 claim
introduces new issues into the litigation. . . . Under
these circumstances, the Court finds it appropriate to
deny Plaintiff’s motion to amend.
2
37a
After the trial court denied Beanblossom’s motion for rehearing,
she filed this appeal. 1
II.
“The Florida Rules of Civil Procedure encourage a policy of
liberality in allowing litigants to amend their pleadings,
especially prior to trial; this policy exists so that cases will be
tried on their merits.” Morgan v. Bank of New York Mellon, 200
So. 3d 792, 795 (Fla. 1st DCA 2016). Although permitting
pleading amendments is encouraged, when making this
determination, trial courts should consider prejudice to the
opposing party, abuse by the moving party, and whether the
proposed amendments would be futile. Id. (quoting Cedar
Mountain Estates, LLC v. Loan One, LLC, 4 So. 3d 15, 16 (Fla.
5th DCA 2009)). We review this ruling for abuse of discretion. Id.
Taking the last of these considerations first, we note that
Beanblossom asserts that the additional claims she raised in the
proposed amended complaint are not futile. We disagree. She
asserted a new theory of negligence against Bay District Schools,
but it suffers the same notice defect as her prior claim. And her
First Amendment claim—that she was retaliated against for
speaking as a citizen when making complaints to various school
district personnel—is futile because she did not speak as a
citizen. See Slay v. Hess, 621 Fed. Appx. 573, 576 (11th Cir. 2015)
(quoting Boyce v. Andrew, 510 F. 3d 1333, 1343 (11th Cir. 2007))
(“In complaining to her superiors at work about how time was
allotted, she was speaking as an employee, and when a
government employee speaks as an employee ‘there can be no
First Amendment issue, and the constitutional inquiry ends.’”).
Because the proposed amendments would have been futile, the
Beanblossom also appeals the order granting summary
judgment in favor of Bay District Schools on Count II. We find no
error in this order.
1
3
38a
trial court did not abuse its discretion in disallowing the
amendments. 2
III.
Trial courts are encouraged to allow amendments to
pleadings, but the right to amend is not unlimited. Because we
find no abuse of discretion in the trial court’s determination that
the amendments were unwarranted, we AFFIRM.
MAKAR, WINOKUR, and WINSOR, JJ., concur.
_____________________________
Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________
Cecile M. Scoon of Peters & Scoon, Panama City, for Appellant.
Heather K. Hudson and Dixon Ross McCloy, Jr., of Harrison,
Sale, and McCloy, Panama City, for Appellee.
2 Because we find that the proposed amendments would have
been futile, we need not address whether they would have caused
prejudice to the opposing party or whether they constituted
abuse.
4
39a
DISTRICT COURT OF APPEAL, FIRST DISTRICT
2000 Drayton Drive
Tallahassee, Florida 32399-0950
Telephone No. (850)488-6151
January 14, 2019
CASE NO.: 1D17-0980
L.T. No.: 13-002015CA
Johanna Beanblossom
v.
Appellant / Petitioner(s),
Bay District Schools, Bay County,
Florida
Appellee / Respondent(s)
BY ORDER OF THE COURT:
The motion for sanctions pursuant to Florida Statute §57.105, filed July 13, 2017, is denied.
The motion for the award of appellate attorneys’ fees based on section 768.79 filed on July 13,
2017, is remanded to the trial court for further proceedings. If the trial court finds that appellee
is entitled to appellate attorneys’ fees under section 768.79, it shall award them after
considering the appropriate amount.
I HEREBY CERTIFY that the foregoing is (a true copy of) the original court order.
Served:
Dixon Ross Mccloy Jr.
Heather K. Hudson
Hon. Bill Kinsaul, Clerk
co
Cecile M. Scoon
40a
DISTRICT COURT OF APPEAL, FIRST DISTRICT
2000 Drayton Drive
Tallahassee, Florida 32399-0950
Telephone No. (850)488-6151
January 14, 2019
CASE NO.: 1D17-1827
L.T. No.: 13-2015-CA
Johanna Beanblossom
Appellant / Petitioner(s),
v.
The School Board of Bay County,
Florida
Appellee / Respondent(s)
BY ORDER OF THE COURT:
Appellee's motion filed June 19, 2018, for attorney's fees is granted. The cause is
remanded to the trial court to assess the amount.
I HEREBY CERTIFY that the foregoing is (a true copy of) the original court order.
Served:
Dixon Ross Mccloy Jr.
Heather K. Hudson
co
Cecile M. Scoon
Casey J. King
Hon. Bill Kinsaul, Clerk
41a
RECEIVED, 10/10/2017 11:42 PM, Jon S. Wheeler, First District Court of Appeal
IN THE DISTRICT COURT OF APPEAL
STATE OF FLORIDA
L.T. No. 13-002015CA
Court of Appeals Case No. 1D17-0980
Appellant,
JOHANNA BEANBLOSSOM
Vs.
Appellee,
BAY DISTRICT SCHOOLS, BAY COUNTY, FLORIDA
APPEALED FROM
THE CIRCUIT COURT FOR THE FOURTEENTH JUDICIAL CIRCUIT
OF THE STATE OF FLORIDA, IN AND FOR BAY COUNTY
REPLY BRIEF OF APPELLANT,
Cecile M. Scoon, Esq.
Attorney for Appellant
FL Bar # 834556
Peters & Scoon
Attorneys at Law
25 East 8th Street
Panama City, FL 32401
Tel: (850) 769-7825
Fax: (850) 215-0963
42a
TABLE OF CONTENTS
TABLE OF CONTENTS ---------------------------------------------------- page i
TABLE OF CITATIONS ---------------------------------------------------- page ii
CERTIFICATE OF SERVICE-----------------------------------------------page 4
CERTIFICATE OF COMPLIANCE----------------------------------------page 5
i.
43a
TABEL OF CITATIONS
Dimick v. Ray, 774 So. 2d 830 (4DCA 2000)——————————p. 2
Gate Lands Co. v. Old Ponte Vedra Beach Condominium, 715 So. 2d 1132
(5DCA 1998——————————————————————————p 1
Doe vs. Miami Dade County, 797 F. Supp. 2d 1296, (S.D. Fl 2011)——p. 3
44a
ARGUMENT
Comes now the Appellant and presents argument in response and rebuttal to
argument presented in the Answer Brief. Appellant states Appellee makes much of
the fact that the litigation had been on going for almost three years, but Appellee
fails to mention that a substantial part of the delay was due to Appellant’s refusal to
provide responses to discovery in a timely fashion, causing Appellant to file a
Motion to Compel on or about 19 August 2016. (App.R. 668-676) Appellant’s
discovery requests were served on November 2014, but Appellee only responded
on or about August 2015, asserting numerous objections and withholding a lot of
documents. ( App. R 234-238). The deposition of the last witness was taken May
11, 2016, reviewing documents provided just before that deposition. ( App. R.
571-585) Appellant was harmed by these delays which made it more difficult for
her to fully understand the parameters of her claim and delayed the determination
that a motion to amend should be filed. In addition, Appellee chose to file two
separate motions for summary judgment. Therefore, Appellant contends that the
denial of the Motion to Amend was improper. Gate Lands Co. v. Old Ponte Vedra
Beach Condominium, 715 so. 2d 1132 (5DCA 1998)
1.
45a
Review of the record indicates that Appellant took over ten depositions and
reviewed numerous documents that were eventually provided by Defendant, after
almost a year and a half delay. This case was worked on intensely. Under these
circumstances, it is not an accurate presentation of the case for the Appellee to lay
blame on the time taken on the case, solely at the feet of the Appellant. The
Appellee contributed significantly to the delays and prevented Appellant from fully
comprehending the full parameters of this case by these discovery delays. Denying
access to pertinent discovery for almost one a half years removes Appellee’s ability
to say that the motion to amend should have been filed sooner in the case.
Under these circumstances, the first request to amend the complaint should
not have been denied and appears to be an abuse of discretion. Dimick v. Ray, 774
So. 2d 830 (4DCA 2000).1
In addition, the proposed amended complaint does not appear to be futile. In
the proposed Amended Complaint, Appellant stated that she had given notice as
required by the statute and the matters complained of were within the three-day
window as required by the notice statute.
2.
1 The first mention of Appellant’s intent
to bring additional claims was made in the Response to
Motion for Summary judgment filed on October 21, 2016, but the fully fleshed out proposed
amended complaint was not attached. (App. R. 683-690).
46a
Moreover, the First Amendment claims in the proposed Amended
Complaint, were not just about Appellant, Ms. Beanblossom, speaking up for
herself, she was clearly primarily speaking up on behalf of the students in her class
that were being bullied with no protection offered by the School Board. Ms.
Beanblossom was speaking out against the School Board’s refusing to follow its
written Anti-bullying policies and knowingly ignoring and tearing up disciplinary
reports made about beatings and bullying of vulnerable children in school and that
is a matter of great public concern. (App. R.462-482, 560, 563, ). Ms
Beanblossom was punished for these complaints and thus the proposed first
Amendment retaliation complaint should have been allowed. (App. R. 563-564)
Finally, the matters complained of in the proposed amended complaint were
not planning functions as stated by Appellee, but were alleged to be negligent
discretionary decisions of the principal, the assistant principal, school board
designee, and human resources manager, who all made discretionary decisions that
subjected school children to harm and then retaliated against Ms. Beanblossom for
complaining about this which is a basis for liability. Appellant alleged actions on
the part of Appellee, in her proposed amended complaint, that amounted to
deliberate indifference. Thus Doe vs. Miami Dade County, 797 F. Supp. 2d 1296,
(S.D. Fl 2011) is not on point.
3.
47a
WHERFORE Appellant prayerfully requests that the appeal be granted and
the case remanded for trial.
Cecile M. Scoon /s/
Cecile M. Scoon, Esq.
Attorney for Appellant
Johanna Beanblossom
Peters & Scoon
FL Bar # 834556
25 East 8th Street
Panama City, FL 32401
Tel: (850) 769-7825
Fax: (850) 215-0963
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and exact copy of the foregoing has been
filed electronically and thereby electronically served by the court system and by
email on Appellee’s attorneys Dixon Ross McCloy, Jr. rmccloy@hsmclaw.com,
Casey King, cking@hsmclaw.com, Heather K. Hudson, hhudson@hsmclaw.com,
and their assistants Lori Benjamin lbenjamin@hsmclaw.com and Blanca Holland,
bholland@hsmclaw.com, 304 Magnolia Ave. P.O. Drawer 1579, Panama City,
Florida 32402, attorney for Appellee, Bay District Schools on this 10th day of
October, 2017.
Cecile M. Scoon /s/
Cecile M. Scoon, Esq.
4.
48a
CERTIFICATE OF COMPLIANCE
The undersigned Counsel hereby certifies that this Initial Appellant’s Brief
has been submitted in Times New Roman 14-Point font in Compliance with the
Requirements of Rule 9.210 of the Florida Rules of Appellate Procedure.
Cecile M. Scoon, /s/
Cecile M. Scoon, Esq.
5.
49a
IN THE DISTRICT COURT OF APPEAL,
FIRST DISTRICT, STATE OF FLORIDA
RECEIVED, 9/20/2017 1:13 PM, Jon S. Wheeler, First District Court of Appeal
CASE NO. 1D17-0980
JOHANNA BEANBLOSSOM,
Plaintiff/Appellant,
v.
THE SCHOOL BOARD OF BAY COUNTY, FLORIDA,
Defendant/Appellee.
ON APPEAL FROM THE FOURTEENTH JUDICIAL CIRCUIT
IN AND FOR BAY COUNTY, FLORIDA
LOWER TRIBUNAL NO.: 13-002015-CA
ANSWER BRIEF OF APPELLEE
HEATHER K. HUDSON
Florida Bar No.: 0091178
DIXON ROSS MCCLOY, JR.
Florida Bar No.: 0262943
HARRISON SALE MCCLOY
Post Office Drawer 1579
Panama City, FL 32401
Telephone: (850) 769-3434
Attorneys for Defendant/Appellee
50a
TABLE OF CONTENTS
TABLE OF CONTENTS ........................................................................................... i
TABLE OF CITATIONS ........................................................................................ iii
Cases
........................................................................................................ iii
Other Authorities ..............................................................................................v
PRELIMINARY STATEMENT ...............................................................................1
STATEMENT OF THE CASE AND OF THE FACTS ...........................................1
A. Course of Proceedings and Disposition Below ..........................................1
B. Statement of Relevant Facts .......................................................................5
Plaintiff’s Employment ..............................................................................5
Proceedings Below Related to Plaintiff’s Negligent Retention Claim ......5
New Negligence Allegations ......................................................................7
Alleged Protected Activities .......................................................................9
SUMMARY OF THE ARGUMENT ......................................................................10
ARGUMENT AND CITATIONS OF AUTHORITY ............................................13
I. Standards of Review .................................................................................13
A.
Summary Judgment — De Novo ...................................................13
B.
Motion to Amend — Abuse of Discretion .....................................14
II. Scope of Review .......................................................................................14
III. The Circuit Court Properly Granted the School Board’s Motion for
Summary Judgment. .................................................................................15
A.
Plaintiff failed to present sufficient argument to demonstrate
reversible error in the Circuit Court’s order granting summary
judgment in the School Board’s favor for Plaintiff’s failure to
i
51a
comply with the § 768.28(6), Fla. Stat. pre-suit notice requirements.
........................................................................................................16
B.
The Circuit Court’s order granting the School Board’s motion for
summary final judgment as to Plaintiff’s negligent retention claim
for Plaintiff’s failure to comply with § 768.28, Fla. Stat. pre-suit
notice requirement is supported by law. ........................................19
IV. The Circuit Court’s Denial of Plaintiff’s Belated Motion to Amend was
not an Abuse of Discretion. ......................................................................24
A.
The Circuit Court properly denied Plaintiff’s request for leave to
amend her complaint more than three years into the litigation......25
B.
The Circuit Court properly denied Plaintiff’s request for leave to
amend her complaint that would have belatedly introduced new
issues, materially altered the grounds for relief, and delayed the suit
to the School Board’s prejudice. ....................................................27
C.
The Circuit Court properly denied Plaintiff’s request for leave to
amend her complaint that was filed in an effort to avoid impending
summary judgment and the effects of Plaintiff’s failure to comply
with § 768.28(6)(a), Fla. Stat. ........................................................31
D.
Plaintiff’s proposed amended complaint, even if allowed, would
have been futile. .............................................................................35
1. Plaintiff’s restated claims remain futile. ...............................35
2. Plaintiff’s new proposed negligence claim is futile..............36
3. Plaintiff’s new proposed First Amendment claim is futile. ..39
CONCLUSION ........................................................................................................44
CERTIFICATE OF SERVICE ................................................................................45
CERTIFICATE OF COMPLIANCE .......................................................................46
ii
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TABLE OF CITATIONS
Cases
Abdur–Rahman v. Walker, 567 F.3d 1278 (11th Cir. 2009)....................................42
Advanced Chiropractic & Rehab. Ctr. Corp. v. United Auto. Ins. Co., 103 So. 3d
866 (Fla. 4th DCA 2012). ..............................................................................15
Anderson v. Burke County, Ga., 239 F.3d 1216 (11th Cir. 2001). ..........................41
Andrew v. Shands at Lake Shore, Inc., 970 So. 2d 887 (1st DCA 2007) ................20
Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150 (Fla. 1979) ......... 14, 15
Badia v. City of Miami, 133 F.3d 1443 (11th Cir. 1998) .........................................43
Boyce v. Andrew, 510 F.3d 1333 (11th Cir. 2007) ..................................................42
Broward County Sch. Bd. v. Joseph, 756 So. 2d 1077 (Fla. 4th DCA 2000) ..........22
Brown v. Montgomery Ward & Co., 252 So. 2d 817 (Fla. 1st DCA 1971) ..... 25, 27
Burkett v. Calhoun County, 441 So. 2d 1108 (Fla. 1st DCA 1983) ........................22
Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980). ...........................................14
City of Gainesville v. State Dept. of Transp., 920 So. 2d 53 (Fla. 1st DCA 2005) .20
Connick v. Myers, 461 U.S. 138 (1983)...................................................................41
Connolly v. Sebeco, Inc., 89 So. 2d 482 (Fla. 1956). ..............................................13
Cox v. Seaboard Coastline Railroad Co., 360 So. 2d 8 (Fla. 2d DCA 1978). ........26
Dade County Sch. Bd. v. Radio Station WQBA, 731 So. 2d 638 (Fla. 1999). .........15
Dausman v. Hillsborough Area Reg'l Transit, 898 So. 2d 213 (Fla. 2d DCA 2005)
.......................................................................................................................29
Daytona Beach Racing & Recreational Facilities Dist. v. Volusia County, 355 So.
2d 175 (Fla. 1st DCA 1978), aff'd, 372 So. 2d 419 (Fla. 1979) ............. 31, 32
iii
53a
Dimick v. Ray, 774 So. 2d 830 (Fla. 4th DCA 2000) ....................................... 31, 32
Doe v. Miami-Dade County, 797 F. Supp. 2d 1296 (S.D. Fla. 2011) .....................38
Dukanauskas v. Metropolitan Dade County, 378 So. 2d 74 (Fla. 5th DCA 1979) .22
Dunn v. Campbell, 166 So. 2d 217 (Fla. 2d DCA 1964). ........................... 27, 28, 29
Furtado v. Yun Chung Law, 51 So. 3d 1269 (Fla. 4th DCA 2011) .........................38
Garcetti v. Ceballos, 547 U.S. 410 (2006) ..............................................................42
Gate Lands Co. v. Old Ponte Vedra Beach Condo., 715 So. 2d 1132 (Fla. 5th DCA
1998) ..............................................................................................................29
Hamide v. State Department of Corrections, 584 So. 2d 136 (Fla. 1st DCA 1991)
.......................................................................................................................22
Hammond v. State, 34 So. 3d 58 (Fla. 4th DCA 2010) ...........................................17
Hazel v. Sch. Bd. of Dade County, Fla., 7 F. Supp. 2d 1349 (S.D. Fla. 1998)........21
Henry v. City of Tallahassee, 149 F. Supp. 2d 1324 (N.D. Fla. 2001)....................43
Inman v. Club on Sailboat Key, Inc., 342 So. 2d 1069 (Fla. 3d DCA 1977) ..........31
Int'l Patrol & Detective Agency, Inc. v. Aetna Cas. & Sur. Co., 396 So. 2d 774 (Fla.
1st DCA 1981), approved sub nom. Int'l Patrol & Detective Agency Co., Inc.
v. Aetna Cas. & Sur. Co., 419 So. 2d 323 (Fla. 1982) ..................................26
Isaac v. Deutsche Bank Nat. Tr. Co., 74 So. 3d 495 (Fla. 4th DCA 2011) ...... 31, 32
Klette v. Klette, 785 So. 2d 562 (Fla. 1st DCA 2001). ............................................14
Klonis v. State of Florida, Department of Revenue, 766 So. 2d 1186 (Fla. 1st DCA
2000) ..............................................................................................................19
Kuria v. BMLRW, LLLP, 101 So. 3d 425 (Fla. 1st DCA 2012). .............................14
Levine v. Dade County Sch. Bd., 442 So. 2d 210 (Fla. 1983). ......................... 20, 22
Lynn v. City of Fort Lauderdale, 81 So. 2d 511 (Fla. 1955) ...................................17
Maynard v. State Department of Corrections, 864 So. 2d 1232 (Fla. 1st DCA 2004)
.......................................................................................................................22
iv
54a
McCullough v. McCullough, 23 So. 2d 139 (Fla. 1945)..........................................28
Menendez v. N. Broward Hosp. Dist., 537 So. 2d 89 (Fla. 1988) .............. 20, 21, 22
Motor v. Citrus County Sch. Bd., 856 So. 2d 1054 (Fla. 5th DCA 2003) ...............22
Noble v. Martin Memorial Hospital Association, Inc., 710 So. 2d 567 (Fla. 4th DCA
1997) ................................................................................................. 29, 32, 33
Pan-Am Tobacco Corp. v. Department of Corrections, 471 So. 2d 4 (Fla. 1984) ..19
Randle v. Randle, 274 So. 2d 557 (Fla. 3d DCA 1973). .................................. 14, 31
Slay v. Hess, 621 Fed. Appx. 573 (11th Cir. 2015) .......................................... 41, 42
Stanton v. Florida Dept. of Health, 129 So. 3d 1083 (Fla. 1st DCA 2013) ............17
State, Dept. of Elder Affairs v. Caldwell, 199 So. 3d 1107 (Fla. 1st DCA 2016) ...39
Thompson v. Bank of New York, 862 So. 2d 768 (Fla. 4th DCA 2003). .......... 35, 44
Wallace v. Dean, 3 So. 3d 1035 (Fla. 2009) ..................................................... 19, 37
Warfield v. Drawdy, 41 So. 2d 877 (Fla. 1949) ................................................ 25, 28
Windham v. Florida Department of Transportation, 476 So. 2d 735 (1st DCA 1985)
.......................................................................................................................19
Yun Enterprises, Ltd. v. Graziani, 840 So. 2d 420 (Fla. 5th DCA 2003)................29
Other Authorities
§ 112.3187, Fla. Stat. ...........................................................................................1, 29
§ 448.102, Fla. Stat. .................................................................................................29
§ 768.14, Fla. Stat. ............................................................................ 7, 16, 17, 18, 19
§ 768.28, Fla. Stat. ........ 3, 5, 6, 10, 12, 16, 18, 19, 20, 21, 24, 31, 35, 36, 37, 38, 39
2003 Fla. Sess. Law Serv. Ch. 2003-261 (C.S.C.S.S.B. 1712). ..............................21
v
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42 U.S.C. § 1983 ................................................................................. 5, 9, 24, 30, 40
Fla. R. App. P. 9.210(a)(2).......................................................................................46
Fla. R. Civ. P. 1.170 .................................................................................................18
Fla. R. Civ. P. 1.190 .................................................................................................24
Fla. R. Civ. P. 1.510(c) ............................................................................................13
SUIT, Black's Law Dictionary (10th ed. 2014). ......................................................18
TORT, Black's Law Dictionary (10th ed. 2014)......................................................18
U.S. Const. amend. I ......................................................................................... 40, 41
vi
56a
PRELIMINARY STATEMENT
Appellee, The School Board of Bay County, Florida, will be referred to herein
as the “School Board.” Appellant, Johanna Beanblossom, will be referred to herein
as “Plaintiff.” References to the record on appeal will be made in parentheses with
an “R.” followed by the page number, e.g. (R. 62). For references to a line number
within a deposition transcript, the line numbers will follow a colon after the page
number, e.g., (R. 52:15).
STATEMENT OF THE CASE AND OF THE FACTS
A.
Course of Proceedings and Disposition Below
1.
Plaintiff initiated this lawsuit with the filing of a two-count Complaint
on December 12, 2013. (R. 11.)
2.
Plaintiff’s Complaint alleged a statutory cause of action under Florida’s
Whistle-Blower’s Act § 112.3187, Florida Statutes and a negligent retention claim.
(R. 11-20.)
3.
Many months of discovery ensued. (R. 38-94, 98-99, 233-238.)
4.
The School Board filed a Motion for Summary Final Judgment as to
Count I of Plaintiff’s Complaint — the whistle-blower claim — on January 15, 2015.
(R. 100.)
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5.
The Circuit Court had the benefit of written arguments from both
parties as well as oral arguments by counsel for both parties. (R. 100-133, 364-381,
385.)
6.
The Circuit Court granted the Defendant’s Motion for Summary Final
Judgment as to Count I of Plaintiff’s Complaint, ending Plaintiff’s claim under the
Act, on December 10, 2015. (R. 384-386.)
7.
Plaintiff thereafter filed a Motion for Rehearing that was denied. (R.
397-404, 421.)
8.
The School Board filed a Motion for Summary Final Judgment as to
Count II of Plaintiff’s complaint — the negligent retention claim — on February 15,
2016 and later filed an Amended Motion for Summary Final Judgment as to that
count on July 22, 2016. (R. 441-449, 632-644.)
9.
Plaintiff filed a Motion to Amend Complaint at 11:34 P.M. on
November 7, 2016, on the eve of the November 8, 2016 hearing on the School
Board’s Motion for Summary Final Judgment on Plaintiff’s only remaining cause of
action. (R. 698-739.)
10.
The Circuit Court again had the benefit of both written and oral
argument from counsel for both parties prior to ruling on the motions. (R. 632-667,
677-761.)
2
58a
11.
The Circuit Court granted the School Board’s Motion for Summary
Final Judgment, this time as to Count II of Plaintiff’s complaint, on January 5, 2017.
The Circuit Court’s order also denied Plaintiff’s Motion to Amend. (R. 761-763.)
12.
The Circuit Court’s order below made specific findings as to why
Plaintiff’s request to amend her complaint was denied, stating:
Plaintiff’s motion to amend comes three years into this
litigation, after extensive discovery, and on the eve of
summary judgment. This last minute request appears to be
an attempt to circumvent summary judgment and escape
the effects of failing to comply with section 768.28 despite
being aware of the statute and having time to cure well
within the statutory period. Moreover, the addition of a
new defendant and the 1983 claim introduces new issues
into the litigation. For the first time Plaintiff alleges that
the school board has a practice or policy of failing to
properly investigate allegations of bullying. Under these
circumstances, the Court finds it appropriate to deny
Plaintiff’s motion to amend.
(R. 762.)
13.
Plaintiff again sought further review below via a Motion for Rehearing,
which was denied. (R. 782-792, 797.)
14.
Plaintiff’s Notice of Appeal to this Court was filed March 8, 2017, and
stated the Plaintiff sought review of each of the Circuit Court’s orders entering
summary final judgments in favor of the School Board and denying Plaintiff’s
motions for rehearing. Plaintiff also sought review of the Circuit Court’s denial of
her prayer for leave to amend her Complaint. (R. 837-847.)
3
59a
15.
Plaintiff filed a Second1 Amended Notice of Appeal on April 3, 2017,
effectively withdrawing her appeal of the School Board’s summary final judgment
as to Plaintiff’s whistle-blower claim.2
16.
In accordance with Plaintiff’s Second Amended Notice of Appeal, the
only orders currently on review are the Circuit Court’s January 4, 2017 Order
Granting Defendant’s Motion for Summary Final Judgment as to Count II of
Plaintiff’s Complaint [Negligent Retention] and Denying Plaintiff’s Motion to
Amend Complaint and the Circuit Court’s February 6, 2017 Order Denying
Plaintiff’s Motion for Rehearing.
17.
By the time Plaintiff filed her Motion to Amend, the suit had been
pending for just under three years and the School Board’s final dispositive motion
was set to be heard just hours later. The parties had exchanged interrogatories and
requests for production of documents to one another, and there had been significant
responses to the same. Thirteen depositions had been taken in the case—one by the
School Board (of the Plaintiff, Johanna Beanblossom) and twelve by the Plaintiff.
Plaintiff’s original Complaint contained 64 paragraphs and two causes of action
(whistle-blower and negligent retention). Plaintiff’s proposed Amended Complaint
1
A first Amended Notice of Appeal had been filed March 10, 2017 to correct an
error in the certificate of service.
2
Plaintiff’s amended notices do not appear in the record below, but are available in
the docket before this Court.
4
60a
contains 104 paragraphs and four causes of action (whistle-blower, negligent
retention, negligence, and retaliation in violation of First Amendment rights under
42 U.S.C. § 1983). (R. 741, 11-31, 38-94, 96-99, 233-238, 387-388, 700-722.)
B.
Statement of Relevant Facts
Plaintiff’s Employment
18.
Plaintiff, Johanna Beanblossom, was hired by the School Board to
teach at Mowat Middle School on a probationary contract basis with an employment
term of January 7, 2013 to June 7, 2013. (R. 148:13.)
19.
Plaintiff taught at Mowat Middle School until May 23, 2013, which was
her last day of employment with the School Board. (R. 149:20-23, 428:10-13.)
20.
While Plaintiff worked at Mowat Middle School, Ed Sheffield was the
principal of that school. (R. 427:23-25.)
Proceedings Below Related to Plaintiff’s Negligent Retention Claim
21.
Count II of Plaintiff’s Complaint alleged that the School Board was
negligent in retaining Sheffield as principal at Mowat Middle School. (R. 16-19.)
22.
There are no allegations within the Plaintiff’s Complaint that she has
complied with the written notice requirements set forth in Florida Statute §768.28.
Specifically, there are no allegations that she has ever presented her claim in writing
to the political subdivision, the School Board of Bay County, Florida, or to the
Department of Financial Services within three years after her claim accrued. There
5
61a
are also no allegations that this condition precedent has been met or was waived. (R.
11-31.)
23.
The School Board asserted defenses in its Answer filed March 3, 2014
that it is immune to suit for lack of no subject matter jurisdiction “because the
Plaintiff has failed to comply with the notice requirements of Florida Statute
§768.28” and that the Plaintiff failed to state a cause of action. (R. 36-37.) Plaintiff
at no time attempted to avoid any affirmative defenses.
24.
The School Board served a Request for Production of Documents upon
Plaintiff on March 6, 2014 requesting “Any and all notices you produced to The
School Board of Bay County, Florida with regard to your claim of negligent
retention of Ed Sheffield as Principal of Mowat Middle School pursuant to Florida
Statute §768.28(6).” (R. 44-45, RFP #2.) No documents were produced in response
to this request when Plaintiff responded on April 17, 2014. (R. 59.) Instead, Plaintiff
responded: “None were produced as not needed per statute and division of Risk
management.” (R. 60.)
25.
Interrogatories were also furnished to the Plaintiff by the School Board
on this particular point on March 6, 2014. (R. 654, 658.) Interrogatory #14, and the
response by Plaintiff on April 17, 2014, were as follows:
14. State when you first notified the Defendant, The
School Board of Bay County, Florida, of the negligence
claim you have set forth in Count II of your complaint
pursuant to the requirements of F.S. §768.28. Please state
6
62a
the manner of your notice, to whom the notice was
delivered and who has custody of the proof of the written
notification.
ANSWER: No notice was provided as per law and the
Florida Risk Department.
(R. 658, 666.)
26.
In opposition to the School Board’s final summary judgment motion,
Plaintiff attempted to introduce correspondence she received from a state agency,
the Department of Economic Opportunity, dated September 4, 2014, as evidence of
a lawsuit against her. (R.694-697.)
27.
The Circuit Court specifically found that the letters from the
Department of Economic Opportunity relied upon by Plaintiff “were not
authenticated and they do not evidence a suit by the state to recover damages in tort
where Plaintiff filed a counterclaim. As such, section 768.14 is inapplicable.” (R.
762.) Plaintiff later filed an affidavit attempting to authenticate the documents, but
this was filed with Plaintiff’s Motion for Rehearing after summary judgment had
been entered. (R. 789.)
New Negligence Allegations
28.
In Plaintiff’s proposed Amended Complaint, she alleged that the School
Board owed her a myriad of duties, including:
a. “… the duty of providing her a safe environment in which to
work…” (R. 715, ¶ 66.)
7
63a
b. “… a duty to prevent its managers from making false statements
against Plaintiff…” (R. 715, ¶ 67.)
c. “… a duty to not knowingly use false statements by one of its
managers against Plaintiff…” (R. 715, ¶ 68.)
d. “… a duty to protect Plaintiff from false statements made by one of
its managers.” (R. 716, ¶ 71.)
e. “… a special duty of care not to knowingly use false statements
against her by a managing agent or principal.” (R. 716, ¶ 72.)
f. “… a duty to hear Plaintiff’s side of the story before any
determination was made to affect her employment.” (R. 718, ¶ 86.)
g. “… a duty to do a full investigation and to disregard Mr. Sheffield’s
statement when they saw that Mr. Sheffield had been untruthful…”
(R. 718, ¶ 87.)
h. “… a duty to not retaliate against Plaintiff after she made statements
that [a] student was being bullied…” (R. 719, ¶ 88.)
29.
Plaintiff’s allegations regarding “false statements” made by a manager
stem from Principal Sheffield’s statements regarding when he obtained written
statements from students, parents, and paraprofessionals against Plaintiff at or near
the time of her termination in May 2013. Although he at one point stated he had
8
64a
them prior to Plaintiff’s termination, he later stated that the statements were not
reduced to writing until one to two weeks later. (R. 716-717, ¶ 74, 76.)
Alleged Protected Activities
30.
Plaintiff’s proposed § 1983 claim, which begins at paragraph 93 of her
proposed Amended Complaint, begins by incorporating all 92 of the preceding
paragraphs of the complaint, including all four of the substantive counts that came
before it. (R. 719, ¶93.)
31.
Plaintiff does not allege within the § 1983 count what exactly her
constitutionally protected activity was, stating only that she engaged “in protected
speech and expression as related in part above.” (R. 720, ¶ 98.)
32.
Otherwise, Plaintiff makes only conclusory allegations that “she made
statements as a citizen on matters of public concern.” (R. 720, ¶ 97.)
33.
Plaintiff’s factual allegations that could be construed as her alleged
protected activities are her allegations that, in her role as a teacher, she complained
to her supervisors regarding how students’ discipline referrals were handled, how
another teacher handled a student’s classwork in accordance with his Individual
Education Plan (“IEP”), and Plaintiff’s concerns that flowed from those issues. (R.
704-705, 707, 725-729.)
34.
Plaintiff further alleges that she has not been re-hired because she filed
this lawsuit. (R. 707, ¶ 38.)
9
65a
SUMMARY OF THE ARGUMENT
Plaintiff herein has had every opportunity to plead and prove whatever viable
causes of action she believed she had against the School Board arising from her brief
employment in the spring semester of 2013. That she has fallen prey to her own
refusal to comply with the very clear statutory notice requirements is no fault but her
own. No one hid that fact from Plaintiff or her counsel. In fact, more than two years
before the time to cure expired, the School Board itself put Plaintiff on notice of the
deficiency in three ways—in its affirmative defenses, interrogatories, and requests
for production. But Plaintiff’s counsel adamantly refused to comply with the law.
Now, years later, Plaintiff still not only maintains that the law does not apply to her,
but asks this Court to believe that a letter she received was not only a lawsuit, but
that it also transformed her suit, filed more than eight months earlier, into a
counterclaim. Plaintiff’s arguments are disingenuous, at best.
The law in this state is clear. Before a plaintiff can lodge a complaint for
negligence against a sovereign subdivision of the state, she simply must meet the
notice requirements of § 768.28(6)(a), Fla. Stat. within three years of the accrual of
the cause of action. That, Plaintiff herein failed to do. Such a failure is fatal to a
claim and cannot be cured once the time to comply with the statute has passed.
Accordingly, the Circuit Court’s order granting summary judgment as to Plaintiff’s
negligent retention claim was proper and the School Board asks this Court to affirm.
10
66a
The record on appeal also supports the School Board’s position, and the
Circuit Court’s finding, that Plaintiff’s motive in filing her Motion to Amend was
simply to avoid summary judgment. Years into this litigation, after much discovery,
and long after the Circuit Court had disposed of Plaintiff’s whistle-blower complaint
on summary judgment, the School Board set a hearing on its final dispositive motion
in this matter, seeking summary judgment against Plaintiff’s final count. That the
School Board’s motion was coming up for hearing came as no surprise to Plaintiff
or her counsel—a motion had been pending for many months before the hearing.
Nonetheless, it was not until 11:34 P.M. on the eve of the hearing that Plaintiff’s
counsel filed and served a motion and proposed amended pleading that sought to
upend the entire proceeding.
The Circuit Court did not abuse its discretion in denying Plaintiff’s request.
Allowing the Plaintiff to amend, and reopening the flood gates of discovery, three
years into this proceeding would have been highly prejudicial to the School Board.
The belated amendment would have delayed the action and adversely affected the
School Board from a financial and procedural point of view, reopening discovery on
completely new grounds and completely new claims of damages. Plaintiff’s counsel
was not diligent in seeking leave to amend and the proposed amendment created new
causes of action requiring a different character of evidence than those outlined in the
original Complaint. The amendment would have served no purpose other than to
11
67a
delay the final disposition of this litigation avoid the effects of Plaintiff’s failure to
comply with § 768.28(6)(a), Fla. Stat.
Furthermore, even if Plaintiff had been given leave to amend, the claims she
attempted to allege in her amendment were futile. Plaintiff first attempted to reallege claims that suffer the same fatal defects that have already been disposed of by
the Circuit Court. She next attempted to state a negligence claim that is fraught with
issues that render it futile on its face—not the least of which being that it again
suffers Plaintiff’s failure to comply with § 768.28(6)(a), Fla. Stat. within three years
of her employment and that Plaintiff seeks to impose liability against the School
Board under a negligence theory as to planning functions, for which the School
Board is immune from suit.
Plaintiff’s proposed cause of action for retaliation under the First Amendment
likewise fails to state a claim. When looking only to Plaintiff’s proposed Amended
Complaint, as one must, it is apparent that Plaintiff’s alleged protected activities do
not rise to the level of constitutionally protected speech. Plaintiff’s statements to her
supervisors on matters pursuant to her official duties were not constitutionally
protected. And when she complained in court of her own perceived mistreatments,
Plaintiff sought only to further her own private interests, so she again was not
speaking on issues of public concern. Accordingly, Plaintiff’s Amended Complaint
for retaliation is futile. The futility of Plaintiff’s proposed amendment further
12
68a
demonstrates that the Circuit Court acted well within its discretion to deny the
belated motion for leave to amend.
For the foregoing reasons, and based upon the authorities cited below, the
School Board requests that this Court affirm the ruling below by holding that the
Circuit Court properly exercised its discretion to grant the School Board’s Motion
for Summary Final Judgment and deny Plaintiff’s Motion to Amend her Complaint.
ARGUMENT AND CITATIONS OF AUTHORITY
I.
Standards of Review
A. Summary Judgment — De Novo
Summary judgment is appropriate where “the pleadings, depositions, answers
to interrogatories, admissions, affidavits, and other materials as would be admissible
in evidence on file show that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter of law.” Fla. R. Civ. P.
1.510(c). Summary judgment is proper if a party “has admitted facts which preclude
him ever obtaining a judgment, or is without evidence to support a fact which he
must establish to succeed, or, in the face of substantial evidence by his opponent, is
without evidence to rebut a fact established by his opponent's evidence which, if
true, precludes a judgment in his favor. . . .” Connolly v. Sebeco, Inc., 89 So. 2d 482,
484 (Fla. 1956).
13
69a
Orders granting summary judgment are reviewed de novo. Kuria v. BMLRW,
LLLP, 101 So. 3d 425, 426 (Fla. 1st DCA 2012). Nonetheless, the decision of the
trial court is presumed to be correct unless an appellant carries his burden of
demonstrating that the trial court committed reversible error. Applegate v. Barnett
Bank of Tallahassee, 377 So. 2d 1150, 1152 (Fla. 1979); Klette v. Klette, 785 So. 2d
562, 563 (Fla. 1st DCA 2001).
B. Motion to Amend — Abuse of Discretion
Where no abuse of discretion is made to appear, a trial court’s ruling on a
motion to amend should not be disturbed. Randle v. Randle, 274 So. 2d 557 (Fla. 3d
DCA 1973). The abuse of discretion standard was summarized by the Supreme
Court in the often-cited Canakaris opinion as follows:
In reviewing a true discretionary act, the appellate court
must fully recognize the superior vantage point of the trial
judge and should apply the “reasonableness” test to
determine whether the trial judge abused his discretion. If
reasonable men could differ as to the propriety of the
action taken by the trial court, then the action is not
unreasonable and there can be no finding of an abuse of
discretion. The discretionary ruling of the trial judge
should be disturbed only when his decision fails to satisfy
this test of reasonableness.
Canakaris v. Canakaris, 382 So. 2d 1197, 1203 (Fla. 1980).
II.
Scope of Review
An order may be affirmed on appeal if it is correct for any reason that is
supported in the record. Dade County Sch. Bd. v. Radio Station WQBA, 731 So. 2d
14
70a
638, 644 (Fla. 1999). This principle is often referred to as the “tipsy coachman”
doctrine, and means that "an appellee, in arguing for the affirmance of a judgment,
is not limited to legal arguments expressly asserted as grounds for the judgment in
the court below. It stands to reason that the appellee can present any argument
supported by the record even if not expressly asserted in the lower court." Dade
County Sch. Bd., 731 So. at 645. See also Applegate, 377 So. 2d at 1152 (“Even
when based on erroneous reasoning, a conclusion or decision of a trial court will
generally be affirmed if the evidence or an alternative theory supports it.”).
The same rule does not apply to an appellant. A lower tribunal cannot be
reversed because of an unpreserved basis or a basis that was not argued below.
Advanced Chiropractic & Rehab. Ctr. Corp. v. United Auto. Ins. Co., 103 So. 3d
866, 869 (Fla. 4th DCA 2012).
III.
The Circuit Court Properly Granted the School Board’s Motion for
Summary Judgment.
The Circuit Court’s issuance of summary final judgment for the School Board
was proper and due to be affirmed. Plaintiff failed to carry her burden of
demonstrating that the Circuit Court committed reversible error. Even if the Court
determines Plaintiff carried that burden, the Circuit Court’s order was proper as
supported by law.
15
71a
A. Plaintiff failed to present sufficient argument to demonstrate
reversible error in the Circuit Court’s order granting summary
judgment in the School Board’s favor for Plaintiff’s failure to comply
with the § 768.28(6), Fla. Stat. pre-suit notice requirements.
Plaintiff’s argument as to why the Circuit Court erred in granting the School
Board’s Motion for Summary Final Judgment on Plaintiff’s negligent retention
claim is, notably, entirely devoid of citation to caselaw.3 Plaintiff points to no law
of this state that supports the contrived argument that an unauthenticated letter from
the Florida Department of Economic Opportunity—a state agency—requiring
Plaintiff to repay unemployment benefits that Plaintiff improperly obtained,
transformed her civil complaint against an entirely different entity—the School
Board of Bay County, Florida—into a counterclaim contemplated by the § 768.14,
Fla. Stat. Plaintiff provides only conclusory statements that are unsupported by a
plain reading of the statutes or any citation to caselaw. Plaintiff further fails to
articulate any error in the Circuit Court’s finding that the letters from the Department
of Economic Opportunity relied upon by Plaintiff “were not authenticated and they
do not evidence a suit by the state to recover damages in tort where Plaintiff filed a
counterclaim. As such, section 768.14 is inapplicable.”4
This Court previously espoused the “well-established maxim of appellate
practice that ‘[c]laims for which an appellant … provides only conclusory argument,
3
4
Initial Brief, 11-13.
(R. 762.)
16
72a
are insufficiently presented for review and are waived.’” Stanton v. Florida Dept. of
Health, 129 So. 3d 1083, 1085 (Fla. 1st DCA 2013) (quoting Hammond v. State, 34
So. 3d 58, 59 (Fla. 4th DCA 2010)).
Having failed to state any basis upon which this Court could find reversible
error in the Circuit Court’s ruling below, Plaintiff has not properly put this question
before the Court for review:
It is elementary that when a decree of the trial court is
brought here on appeal the duty rests upon the appealing
party to make error clearly appear. … An appellant does
not discharge this duty by merely posing a question with
an accompanying assertion that it was improperly
answered in the court below and then dumping the matter
into the lap of the appellate court for decision. Under such
circumstances it must be held, as we now hold here, that
we are under no duty to answer the question.
Lynn v. City of Fort Lauderdale, 81 So. 2d 511, 513 (Fla. 1955) (internal citation
omitted). Nonetheless, even assuming arguendo that Plaintiff’s brief is sufficient to
warrant review of this issue, Plaintiff’s argument is without merit.
Even if reality could be suspended long enough for the Court to believe that a
piece of correspondence Plaintiff received in September 20145 converted her lawsuit
filed over eight months earlier6 into a counterclaim, a plain reading of § 768.14, Fla.
Stat. demonstrates that the statute simply does not apply. In full, the section reads:
5
6
The correspondence is dated September 4, 2014. (R. 696.)
Plaintiff’s Initial Complaint was filed December 12, 2013. (R. 11.)
17
73a
Suit by the state or any of its agencies or subdivisions to
recover damages in tort shall constitute a waiver of
sovereign immunity from liability and suit for damages in
tort to the extent of permitting the defendant to
counterclaim for damages resulting from the same
transaction or occurrence.
§ 768.14, Fla. Stat. The Florida Rules of Civil Procedure speak to a compulsory
counterclaim, which is the type contemplated by the statute here, as follows:
A pleading must state as a counterclaim any claim which
at the time of serving the pleading the pleader has against
any opposing party, provided it arises out of the
transaction or occurrence that is the subject matter of the
opposing party's claim and does not require for its
adjudication the presence of third parties over whom the
court cannot acquire jurisdiction. …
Fla. R. Civ. P. 1.170(a). Plaintiff’s claim against the School Board was not stated in
such a manner, as there was neither a pleading for Plaintiff to respond to, nor a
singular transaction or occurrence. Furthermore, the plain language definitions of
“suit”7 and “tort”8 belie Plaintiff’s meritless theory that the letter she received, let
alone that it was not from the School Board, was a suit for tort damages that she
could file a “counterclaim” to without complying with § 768.28(6)(a), Fla. Stat.
“Any proceeding by a party or parties against another in a court of law.” SUIT,
Black's Law Dictionary (10th ed. 2014).
8
“A civil wrong, other than breach of contract, for which a remedy may be obtained,
usu. in the form of damages.” TORT, Black's Law Dictionary (10th ed. 2014).
18
7
74a
Having demonstrated that § 768.14, Fla. Stat. is inapplicable, the School
Board presents the following additional bases demonstrating the sound reasoning
behind the Circuit Court’s ruling, which is due to be affirmed.
B. The Circuit Court’s order granting the School Board’s motion for
summary final judgment as to Plaintiff’s negligent retention claim for
Plaintiff’s failure to comply with § 768.28, Fla. Stat. pre-suit notice
requirement is supported by law.
Count II of the Plaintiff’s Complaint is for the negligent retention of Ed
Sheffield as the Principal of Mowat Middle School. A negligent retention claim
based upon a tort against a governmental subdivision such as the School Board is
subject to the sovereign immunity derived from the doctrine of separation of powers.
Wallace v. Dean, 3 So. 3d 1035, 1045 (Fla. 2009). Sovereign immunity protections
are absolute, absent a statutory or constitutional waiver. Klonis v. State of Florida,
Department of Revenue, 766 So. 2d 1186, 1189 (Fla. 1st DCA 2000). Florida Statute
§768.28 provides such a waiver, but only to the extent provided therein. § 768.28
(1), Fla. Stat.
Sovereign immunity in this state is the rule, not the exception. Pan-Am
Tobacco Corp. v. Department of Corrections, 471 So. 2d 4, 5 (Fla. 1984); Windham
v. Florida Department of Transportation, 476 So. 2d 735, 739 (1st DCA 1985). “The
legislative purpose in enacting a sovereign immunity statute such as the one at issue
in this matter is to protect the public from profligate encroachments on the public
19
75a
treasury.” Andrew v. Shands at Lake Shore, Inc., 970 So. 2d 887, 890 (1st DCA
2007).
Florida Statute §768.28 is strictly construed in favor of a governmental entity
in order to effectuate the purpose for which it was designed. City of Gainesville v.
State Dept. of Transp., 920 So. 2d 53 (Fla. 1st DCA 2005). As such, there are certain
terms and conditions that must be met by a claimant before waiver occurs. This
includes the pre-suit notice requirement, which reads as follows:
An action may not be instituted on a claim against the state
or one of its agencies or subdivisions unless the claimant
presents the claim in writing to the appropriate agency,
and also … presents such claim in writing to the
Department of Financial Services, within 3 years after
such claim accrues and the Department of Financial
Services or the appropriate agency denies the claim in
writing….
§ 768.28(6)(a), Fla. Stat. Further, the notice and denial requirements from paragraph
(6)(a) are “conditions precedent to maintaining an action…” § 768.28(6)(b), Fla.
Stat. To state a cause of action, a complaint must contain an allegation that the notice
requirement has been complied with. Menendez v. N. Broward Hosp. Dist., 537 So.
2d 89, 91 (Fla. 1988); Levine v. Dade County Sch. Bd., 442 So. 2d 210, 213 (Fla.
1983).
There also can be no doubt that these requirements are entirely applicable to
suits against school boards. Levine v. Dade County Sch. Bd., 442 So. 2d 210, 212-
20
76a
13 (Fla. 1983) (holding that even though the Department of Insurance 9 did not
manage claims against school boards, strict construction of the waiver statute
necessitated dismissal with prejudice where no notice was given); see also Hazel v.
Sch. Bd. of Dade County, Fla., 7 F. Supp. 2d 1349 (S.D. Fla. 1998) (dismissing a
school board employee’s claim for negligent supervision and retention for
employee’s failure to give notice of suit to the Department of Insurance within three
years, as required by § 768.28, Fla. Stat.).
Despite being put on notice of her failure to comply with § 768.28(6)(a), Fla.
Stat. via the School Board’s Answer filed March 3, 2014 and discovery requests
filed March 6, 2014, Plaintiff failed to cure this deficiency in the more than two years
that followed before the fatal defect became incurable on May 23, 2016. Just as the
Supreme Court determined in Menendez, the Plaintiff here fell prey to her own
failure to comply with the statute and her claim cannot be cured at this point. See
Menendez v. N. Broward Hosp. Dist., 537 So. 2d 89, 91 (Fla. 1988). (“The time for
filing a proper claim having expired, the Menendezes' failure to notify the
Department is fatal to their complaint. Because this failure was present from the
9
Until § 768.28 was amended in 2003 due to a government reorganization that
renamed the department, notice was previously required to be served upon the
Department of Insurance rather than the present Department of Financial Services.
See 2003 Fla. Sess. Law Serv. Ch. 2003-261 (C.S.C.S.S.B. 1712).
21
77a
beginning and cannot be attributed to the hospital's conduct, the doctrine of estoppel
is inapplicable.”).
When a claimant fails to timely comply with the pre-suit notice requirement,
the claimant’s right to bring an action is forfeited. Levine, 442 So. 2d at 213.
Importantly, where the time for such notice has expired so that it is apparent that the
plaintiff cannot possibly fulfill that requirement, the trial court has no alternative but
to dismiss the complaint with prejudice. Id.10
Plaintiff admittedly failed to provide written notice to the School Board and
the Department of Financial Services within three years and, therefore, the Circuit
Court lacked subject matter jurisdiction over the claim for negligent retention.
Plaintiff did not even take steps to amend or supplement her claim when specifically
put on notice of these deficiencies by the School Board’s affirmative defenses and
through discovery requests. In fact, the Plaintiff chose not to comply, instead
maintaining that the law does not apply to her.
Plaintiff’s cause of action for negligent retention or supervision accrued, at
the very latest, on May 23, 2013, her last day of employment. At no point thereafter
10
See also Broward County Sch. Bd. v. Joseph, 756 So. 2d 1077, 1078 (Fla. 4th DCA
2000); Burkett v. Calhoun County, 441 So. 2d 1108 (Fla. 1st DCA 1983); Motor v.
Citrus County Sch. Bd., 856 So. 2d 1054 (Fla. 5th DCA 2003); Maynard v. State
Department of Corrections, 864 So. 2d 1232 (Fla. 1st DCA 2004); Hamide v. State
Department of Corrections, 584 So. 2d 136 (Fla. 1st DCA 1991); Dukanauskas v.
Metropolitan Dade County, 378 So. 2d 74 (Fla. 5th DCA 1979); Menendez, 537 So.
2d 89.
22
78a
could Plaintiff have suffered any damages as a School Board employee as a result
of any negligence on the part of the School Board and its continued retention of Ed
Sheffield as a principal. Three years from the date of the accrual of the action was
May 23, 2016. Plaintiff admits that no notice of any claim in writing was received
by the School Board or the Department of Financial Services before that date, and
Plaintiff’s Complaint for negligent retention therefore fails to state a cause of action
and failed to provide subject matter jurisdiction to the Circuit Court.
Plaintiff’s continued reliance upon a phantom statement by the “Division of
risk management”11 that Plaintiff claims to have relied upon to her detriment
continues to be absent from the record and is due to be ignored just as the Circuit
Court did below.12 The School Board’s Amended Motion for Summary Final
Judgment was filed on July 22, 2016 and not heard by the Circuit Court until
November 8, 2016.13 If Plaintiff’s counsel wished to rely upon her own testimony
that she received some sort of assurance from a state agency, counsel had ample time
to execute an affidavit to that effect and provide evidence of the claimed assurance
she relied upon. That counsel failed to do so, and the record remains devoid of such
evidence, is noteworthy. As such, Plaintiff’s arguments with regard to the alleged
11
Initial Brief, 13.
(See R. 762 (noting “Finally, Plaintiff argues that the Department of Financial
Services told her that notice was not required. However, there is no evidence in the
record to support this assertion.”)
13
(R. 632, 761.)
23
12
79a
assurance from a state agency, without any record evidence or law to support any
such reliance, do not excuse Plaintiff’s failure to comply with the law and provide
pre-suit notices.
IV.
The Circuit Court’s Denial of Plaintiff’s Belated Motion to Amend was
not an Abuse of Discretion.
Florida Rule of Civil Procedure 1.190(a) provides that a party may amend a
pleading once, as a matter of course, under certain circumstances.14 Those
circumstances do not appear in this instance. Beyond that, a party may amend a
pleading “only by leave of court or by written consent of the adverse party.” Fla. R.
Civ. P. 1.190(a). To amend a pleading, a party is required to file a motion to amend
a pleading and to attach the proposed amended pleading to the motion. Id.
The Circuit Court’s order below made specific findings regarding why
Plaintiff’s belated request was denied, stating:
Plaintiff’s motion to amend comes three years into this
litigation, after extensive discovery, and on the eve of
summary judgment. This last minute request appears to be
an attempt to circumvent summary judgment and escape
the effects of failing to comply with section 768.28 despite
being aware of the statute and having time to cure well
within the statutory period. Moreover, the addition of a
new defendant and the 1983 claim introduces new issues
“A party may amend a pleading once as a matter of course at any time before a
responsive pleading is served or, if the pleading is one to which no responsive
pleading is permitted and the action has not been placed on the trial calendar, may
so amend it at any time within 20 days after it is served.” Fla. R. Civ. P. 1.190(a).
14
24
80a
into the litigation. For the first time Plaintiff alleges that
the school board has a practice or policy of failing to
properly investigate allegations of bullying. Under these
circumstances, the Court finds it appropriate to deny
Plaintiff’s motion to amend.15
These findings, which are supported by the record below, demonstrate that the
Circuit Court did not abuse its discretion in denying Plaintiff’s prayer for leave to
amend.
A. The Circuit Court properly denied Plaintiff’s request for leave to
amend her complaint more than three years into the litigation.
Trial courts have broad discretion to permit amendments to pleadings, but that
discretion decreases as the case progresses. See Warfield v. Drawdy, 41 So. 2d 877,
879 (Fla. 1949) (noting that the plaintiff “offered no amendment until all testimony
in the case had been taken; so, … by the time she got around to submitting the
amended bill the liberality in allowing such amendments had diminished to the point
where her request was entitled to very little consideration on the part of the
chancellor.”). As this Court previously opined, “[a]lthough it is highly desirable that
amendments to pleadings be liberally allowed so that cases may be concluded on
their merits, there is an equally compelling obligation on the court to see to it that
the end of all litigation be finally reached.” Brown v. Montgomery Ward & Co., 252
So. 2d 817, 819 (Fla. 1st DCA 1971).
15
(R. 762.)
25
81a
In Cox v. Seaboard Coastline Railroad Co., an action for wrongful death had
been pending for three years when the movant sought to amend a complaint to assert
a new cause of action. 360 So. 2d 8 (Fla. 2d DCA 1978). The Second District noted
that while an amended pleading will be allowed to relate back to the original
pleading, “it is equally well established that this does not authorize a plaintiff, under
the guise of an amendment, to state a new and different cause of action” and that
such an amendment would not be allowed if it would “change an issue, introduce
new issues, or materially vary the grounds of relief.” Id. at 9. See also Int'l Patrol &
Detective Agency, Inc. v. Aetna Cas. & Sur. Co., 396 So. 2d 774 (Fla. 1st DCA
1981), approved sub nom. Int'l Patrol & Detective Agency Co., Inc. v. Aetna Cas. &
Sur. Co., 419 So. 2d 323 (Fla. 1982) (no error in denying leave to amend complaint
two years after action was commenced and after discovery was substantially
completed, as such an amendment would interfere with the timely resolution of the
already pending issues in the case).
Plaintiff’s belated motion was not due the same level of deference it may have
been had she been diligent in seeking leave to amend much sooner in this process or
when she first became aware of her need or desire to plead new claims. At this stage,
however, the School Board is entitled to finally see the end of this litigation, having
successfully pursued its motions for summary judgment.
26
82a
B. The Circuit Court properly denied Plaintiff’s request for leave to
amend her complaint that would have belatedly introduced new
issues, materially altered the grounds for relief, and delayed the suit
to the School Board’s prejudice.
Indeed, a “court may, in its discretion, deny any party the right to amend his
pleadings if the proposed amendments will change or introduce new issues or
materially vary the grounds for relief, or where the filing of such pleadings will delay
the suit by necessarily requiring a continuance under circumstances which would be
unduly prejudicial to the opposing party.” Brown v. Montgomery Ward, 252 So. 2d
at 819 (footnotes omitted).
In Dunn v. Campbell, the Second District Court of Appeals affirmed the trial
court’s denial of the plaintiff’s motion to amend the complaint to add three counts
raising issues of assault and battery, res ipsa loquitur, and misinformation as to
hospital charges four days prior to the hearing on the defendant’s motion for
summary judgment. 166 So. 2d 217, 218-19 (Fla. 2d DCA 1964). There, the
defendant argued several points in his well-received opposition to the proposed
amendments:
(1) that the granting of the motion at this particular point
of the litigation would be highly prejudicial to the
defendnat; (2) that the granting of the motion would
unduly delay the action and would adversely affect the
defendant from a financial and procedural point of view;
(3) that counsel for petitioner was not diligent in
attempting to file the amendment; (4) that the amendment
creates new causes of action requiring a different character
of evidence than those required under the complaint; (5)
27
83a
that the granting of the motion would cause the litigation
to be unnecessarily lengthy and expensive to the
respondent; and (6) that the motions serve no purpose
other than to delay defendant's motion for summary
judgment.
Id. at 219. The Second District noted the numerous depositions, previous court
orders, and the fact that the plaintiff waited until only four days prior to a pretrial
conference and summary judgment hearing to file the motion for leave to amend. Id.
In ultimately concluding that the trial court’s denial of the request for leave to amend
was not an abuse of discretion, the Second District looked to Supreme Court
opinions regarding a trial court’s discretion to disallow amendment where the
amendment would change the issues, introduce new issues, or materially vary the
grounds for relief. Id. (citing Warfield v. Drawdy, 41 So. 2d 877 (Fla. 1949) (“…if
the issues were changed or new ones introduced or the grounds of relief materially
varied, the matter could not be introduced in an amendment.”); (McCullough v.
McCullough, 23 So. 2d 139, 140 (Fla. 1945) (an amendment to meet the proof is
generally not allowable if it would change the theory of the case or the cause of
action)).
Plaintiff’s reliance upon cited caselaw to the contrary is misplaced. 16 The
cases cited by Plaintiff dealt primarily with parties who sought leave to amend to
16
Initial Brief, p. 14, 17.
28
84a
cure a defect and re-state the exact, or nearly exact, same claim. See Yun Enterprises,
Ltd. v. Graziani, 840 So. 2d 420 (Fla. 5th DCA 2003)17 (allowing plaintiff to reallege identical contract claim with appropriate documents attached as exhibits to
cure prior defect); Gate Lands Co. v. Old Ponte Vedra Beach Condo., 715 So. 2d
1132 (Fla. 5th DCA 1998) (allowing amendment of common law indemnity claim
to re-state identical claim to cure defect); Dausman v. Hillsborough Area Reg'l
Transit, 898 So. 2d 213 (Fla. 2d DCA 2005) (allowing amendment to re-state the
same cause of action under a different statute where plaintiff brought whistle-blower
claim under private sector whistle-blower act, § 448.102, Fla. Stat., instead of public
section whistle-blower act, § 112.3187, Fla. Stat.). Unlike the movants in the cases
relied upon by Plaintiff, Plaintiff here cannot simply re-plead her cause of action and
cure a defect. Instead, she is trying to resuscitate a lawsuit that suffers from an
incurable fatal defect by stating an entirely new cause of action many years into this
litigation. The case at bar is much more similar to Dunn18 and Noble19 than the
opinions relied upon by Plaintiff.
17
The opinion in Yun is further distinguishable in that the parties there were not
dealing with prolonged litigation like the parties in the case at bar. It appears the
complaint was filed in 2000 and the plaintiff sought leave to amend in 2001. See Yun
Enterprises, Ltd. v. Graziani, 840 So. 2d at 421-22 (noting that complaint was filed
two years after June 1998 contract and summary judgment was entered in December
2001).
18
166 So. 2d 217 (Fla. 2d DCA 1964).
19
See, Noble v. Martin Memorial Hospital Association, Inc., 710 So. 2d 567 (Fla.
4th DCA 1997), discussed below.
29
85a
Plaintiff’s belated Motion to Amend came three years after the case was filed,
after significant discovery was completed, sought new damages that are different
from the damages sought in the original Complaint, and added a new party defendant
to the action. Plaintiff’s new allegation that the School Board had a policy or practice
of failing to properly investigate allegations of bullying would require an entirely
new line of discovery for both parties. Plaintiff’s lack of diligence in timely filing
for leave to amend until mere hours before the School Board’s final dispositive
motion was to be heard smacks of an attempt to frustrate, rather than further, the
judicial process.
The section 1983 action Plaintiff seeks to add to this litigation would introduce
a new cause of action, a new party defendant, new damages with no statutory cap,
and would require extensive discovery beyond that which has already been
conducted over the course of three years. Allowing the amendment would reopen
discovery and test the recall of all witnesses, now up to nearly four years after the
events. Much like the purpose of a statute of limitations, timely parameters to a
claim are necessary to insure fairness to all parties. Furthermore, the basis for the
new causes of action Plaintiff sought to introduce on the eve of summary judgment
had been known for many months. Any lack of diligence in filing the Motion to
Amend was not the fault of the School Board, and all parties to litigation are entitled
to receive a timely end to issues in dispute.
30
86a
C.
The Circuit Court properly denied Plaintiff’s request for leave to
amend her complaint that was filed in an effort to avoid impending
summary judgment and the effects of Plaintiff’s failure to comply
with § 768.28(6)(a), Fla. Stat.
A motion to amend pleadings is further weakened when filed on the eve of or
in the face of a hearing on a motion for summary judgment. Randle v. Randle, 274
So. 2d 557 (Fla. 3d DCA 1973) (affirming trial court’s ruling denying appellant’s
motion to amend answer to add a counterclaim filed two and one half years after the
original answer, and just prior to a hearing on a motion for summary judgment);
Inman v. Club on Sailboat Key, Inc., 342 So. 2d 1069 (Fla. 3d DCA 1977)
(confirming that a party who opposes summary judgment will not be permitted to
alter the position of his or her previous pleadings in order to defeat a summary
judgment where party attempted to raise new issues for the first time in motion for
rehearing and for leave to amend after summary judgment had been entered);
Daytona Beach Racing & Recreational Facilities Dist. v. Volusia County, 355 So.
2d 175 (Fla. 1st DCA 1978), aff'd, 372 So. 2d 419 (Fla. 1979) (affirming denial of
amendment to the complaint, proposed belatedly at the hearing on the opponent’s
motion for summary judgment, because the tendered amendment injected new issues
foreign to the original complaint);20 Isaac v. Deutsche Bank Nat. Tr. Co., 74 So. 3d
Plaintiff’s reliance upon Dimick v. Ray, 774 So. 2d 830 (Fla. 4th DCA 2000) is
misplaced. This Court’s opinion in Daytona Beach Racing, which the Fourth
20
31
87a
495 (Fla. 4th DCA 2011) (no abuse of discretion in denying motion to amend where
the motion was made for the first time at the summary judgment hearing without
attaching a copy of the proposed amended pleading). The only difference between
Isaac and the present case is that the Plaintiff filed a Motion to Amend and attached
a proposed amended pleading approximately ten hours before the summary
judgment hearing.
Similar to the case at bar, in both the length of time it has taken to file the
motion to amend and the purpose being to avoid summary judgment, the court in
Noble v. Martin Memorial Hospital Association, Inc. held that the trial court
properly denied the plaintiff’s motion to amend his complaint to add a claim for
injunctive relief where the motion was filed shortly after the defendant’s motion for
summary judgment was filed, and then no action was taken to set the motion for
hearing, no amended complaint was attached, and it appeared the plaintiff only
wanted injunctive relief if his request for monetary relief (which was the subject of
District distinguished in Dimick, is the more similar case. In Dimick, plaintiff’s
counsel was diligent in filing the proposed amendment just ten days after the filing
of the motion for summary judgment, and the parties would only be required to
update their legal research in order to accommodate the amendment. Dimick, 774
So. 2d at 832, 834. Additionally, the Fourth District specifically distinguished cases
like the one at hand by pointing to this Court’s opinion in Daytona Beach Racing
“where the appellate court approved the trial court's denial of a motion to amend
appellants' complaint, which was ‘belatedly’ made at the hearing on appellees'
motion for summary judgment and which injected ‘foreign’ issues into the
litigation.” Id. at 834 n.2 (citing Daytona Beach Racing, 355 So. 2d at 177).
32
88a
the motion for summary judgment) was to be denied. 710 So. 2d 567, 568-69 (Fla.
4th DCA 1997). The Fourth District concluded that “a party should not be permitted
to amend its pleading for the sole purpose of defeating a motion for summary
judgment.” Id. at 568. The court further noted that this was not a case where the
plaintiff “needed an opportunity to reallege a cause of action that he had overlooked
during the early part of the litigation. Rather, it is a case where [the plaintiff] did not
want injunctive relief until it appeared that his quest for monetary damages had come
to an end.” Id.
Plaintiff’s attempt to distinguish the Fourth District’s opinion in Noble21
simply because Plaintiff here has not sought multiple amendments overlooks the fact
that the Fourth District did not decide Noble based upon that fact alone—the party
seeking amendment there was also clearly seeking new relief because it appeared
that the relief he had sought for over four years of litigation was about to be denied
via the impending summary judgment hearing. Id. at 568. The factual similarities in
Noble and the case at bar are strong—Plaintiff pursued an action in negligence for
nearly three years until the eve of the final dispositive motion against her complaint
when a new cause of action suddenly arose. Much like the trial court in Noble, the
Circuit Court here did not abuse its discretion and its order is due to be affirmed.
21
Initial Brief, p. 14-15.
33
89a
In the case at bar, Plaintiff’s motion with her proposed Amended Complaint
attached was not filed until the eve of the Motion for Summary Judgment hearing
on November 8, 2016—as indicated by the time stamp at the top of Plaintiff’s motion
showing it was filed at 11:34 P.M. on November 7, 2016.22 The Defendant’s Motion
for Summary Final Judgment on the negligent retention claim was pending for
almost nine months before its hearing date.23 Plaintiff’s formal Motion to Amend,
with the attached proposed Amended Complaint, was pending only a matter of hours
before the summary judgment hearing took place. Such a delayed filing is the
equivalent of moving to amend at the conclusion of trial.
If Plaintiff’s amendment had been allowed, and the parties had been required
to resume discovery, the School Board would have continued to be prejudiced by
Plaintiff’s pursuit of this years-long litigation without end due to Plaintiff’s lack of
diligence in pleading, noticing, and filing any and all claims she wished to pursue in
a timely manner.
22
(R. 698; see also R. 761 noting that the Circuit Court heard arguments on
November 8, 2016.)
23
The School Board filed a Motion for Summary Final Judgment as to the negligent
retention claim on February 15, 2016 and later filed an Amended Motion for
Summary Final Judgment as to that count on July 22, 2016. (R. 441-449, 632-644.)
34
90a
D.
Plaintiff’s proposed amended complaint, even if allowed, would
have been futile.
When a party’s proposed amendment is insufficiently pled, and allowing the
amendment would therefore be futile, leave to amend should not be granted.
Thompson v. Bank of New York, 862 So. 2d 768, 770 (Fla. 4th DCA 2003).
Plaintiff’s proposed amendment presents four counts, all of which are futile and need
not be allowed to proceed.
1.
Plaintiff’s restated claims remain futile.
The first is Plaintiff’s previous whistle-blower count that the Circuit Court
entered summary judgment against nearly two years ago.24 Plaintiff is not pursuing
an appeal of that decision25 and cannot cure the fatal defects that claim suffered from
now any better than she could have then.
Next, the proposed Amended Complaint attempts to re-allege Plaintiff’s
negligent retention claim. For the same reasons discussed at length above, Plaintiff
cannot state a claim against the School Board for negligent retention where she has
refused to comply with the pre-suit notice requirements of § 768.28(6)(a), Fla. Stat.
24
(R. 384-386, dated December 10, 2015.)
See footnote 1 of Plaintiff’s Second Amended Notice of Appeal, filed April 3,
2017.
35
25
91a
2.
Plaintiff’s new proposed negligence claim is futile.
The third count in Plaintiff’s proposed Amended Complaint appears to be a
conglomeration of all of the wrongs Plaintiff claims to have suffered at the hands of
the School Board. Of all the duties she alleges the School Board owed her, though,
none could have been breached in a manner that would give rise to liability against
the School Board under a theory of negligence at this juncture.
First, Plaintiff alleges that the School Board owed her a duty to provide a safe
work environment. If Plaintiff could demonstrate that the School Board breached
such a duty, that breach could have occurred no later than Plaintiff’s last day of
employment—May 23, 2013. Accordingly, any claim reliant upon such a breach
was barred if not duly noticed under § 768.28(6)(a), Fla. Stat. on or before May 23,
2016. The same analysis is true as to Plaintiff’s allegations that the School Board
owed her duties with regard to any false statements made by a manager and her
allegation that the School Board had a duty to “hear Plaintiff’s side of the story” 26
before terminating her employment. Any such duty owed to Plaintiff could only
have been owed during her tenure as an employee of the School Board, which ended
on May 23, 2013. For the same reasons discussed at length above, Plaintiff cannot
state a claim against the School Board for negligence where she refused to comply
26
(R. 718, ¶ 86.)
36
92a
with the pre-suit notice requirements of § 768.28(6)(a), Fla. Stat. and her time to do
so has expired.
Additionally, Plaintiff’s allegations that the School Board owed her duties not
to “knowingly use false statements”27 against her are nonsensical in the context of a
negligence claim.
One cannot negligently knowingly use a false statement.
Furthermore, if anyone purporting to act on behalf of the School Board “knowingly
used a false statement” against Plaintiff, that act would not be subject to the
sovereign immunity waiver, and the School Board is immune from suit. See §
768.28 (9)(a), Fla. Stat.
Next Plaintiff dips her toe into setting personnel policies and procedures on
behalf of a sovereign agency by alleging that the School Board owed her duties with
regard to how and when it investigates claims made against employees when making
personnel decisions.28 The School Board’s adoption of procedures for handling
employment issues is a planning function, for which the School Board is immune
from suit. The Supreme Court opined that “the Florida Constitution requires that
certain quasi-legislative policy-making, planning or judgmental governmental
functions cannot be the subject of traditional tort liability.” Wallace v. Dean, 3 So.
3d 1035, 1053 (Fla. 2009) (internal quotation marks and citations omitted).
27
28
(R. 715, 716, ¶ 68, 72.)
(R. 718, ¶ 86, 87.)
37
93a
This was demonstrated in the case of Doe v. Miami-Dade County, 797 F.
Supp. 2d 1296 (S.D. Fla. 2011). In Doe v. Miami, the court held that under Florida
law, the county did not breach its policies and procedures in hiring a police officer
who later used his position to commit sexual crimes against minors, and thus the
county was entitled to sovereign immunity from the minor's negligent hiring claim.
Id. at 1304. Specifically, the court stated that the county “cannot be held liable in a
negligence action concerning the content of its hiring policies, no matter how
ineffective the policies are alleged to be.” Id.
How the School Board handles personnel matters, what level of deference it
affords to principals in investigating claims against school employees, and when it
requires the human resources department to carry out a full investigation of
statements made by a principal when an employment decision is made, are all
planning level functions for which the School Board is immune not only from
liability, but from suit. See Furtado v. Yun Chung Law, 51 So. 3d 1269, 1277 (Fla.
4th DCA 2011) (“Importantly, the immunity provided by section 768.28(9)(a) is
both an immunity from liability and an immunity from suit, and the benefit of this
immunity is effectively lost if the person entitled to assert it is required to go to
trial.”).
Lastly, Plaintiff’s Amended Complaint alleges that the School Board had a
duty not to retaliate against her.
Negligent retaliation also appears to be a
38
94a
contradiction that caselaw cannot account for, as employment retaliation claims are
creatures of statute, not common law torts sounding in negligence. Plaintiff’s
counsel cannot escape her failure to comply with the statutory requirements of the
whistle-blower act, which resulted in summary judgment against that claim, by repainting it as a negligence claim. See State, Dept. of Elder Affairs v. Caldwell, 199
So. 3d 1107, 1110 (Fla. 1st DCA 2016) (holding that the statutory waiver of
sovereign immunity applies only to tort claims, not statutory claims such as
retaliatory discharge). Thus, there is no waiver and the School Board is immune
from suit on that theory.
Additionally, there can be no waiver of sovereign immunity for such a claim
even if the School Board had somehow negligently retaliated against the Plaintiff,
as surely retaliation is not an action within the course or scope of anyone’s duties.
See § 768.28 (9)(a), Fla. Stat.
Plaintiff’s amended negligence claim suffers many of the same fatal defects
as her negligent retention claim, and for the additional reasons stated above, is futile
on the face of the Amended Complaint.
3.
Plaintiff’s new proposed First Amendment claim is futile.
Lastly, for the first time in this years-long saga, Plaintiff attempts to allege a
federal claim against the School Board for retaliation in violation of Plaintiff’s First
39
95a
Amendment29 rights pursuant to 42 U.S.C. § 1983. In assessing the futility of
Plaintiff’s § 1983 action, the School Board would first urge this Court to look
carefully at the proposed amended pleading30 rather than what Plaintiff now argues
in her Initial Brief. Plaintiff seeks to argue on appeal about a myriad of issues that
are not pled in her proposed Amended Complaint.31
Plaintiff’s proposed § 1983 claim, which begins at paragraph 93 of her
proposed Amended Complaint, begins by incorporating all 92 of the preceding
paragraphs of the complaint, including all four of the substantive counts that came
before it.32 Plaintiff does not allege within the § 1983 count what exactly her
constitutionally protected activity was, stating only that she engaged “in protected
speech and expression as related in part above,”33 so the School Board and this Court
must guess at that from a reading of the previous 92 paragraphs. Otherwise, Plaintiff
makes only conclusory allegations that “she made statements as a citizen on matters
of public concern.”34
U.S. Const. amend. I (hereinafter the “First Amendment”).
(R. 700-722.)
31
See, e.g., Initial Brief, at 15-16 (referencing anything to do with Nancy Montague;
referencing a copy of a lawsuit inadvertently placed in a personnel file; referencing
who the decision maker is for substitute teaching positions). None of these issues
are addressed in Plaintiff’s proposed amendment.
32
(R. 719, ¶93.)
33
(R. 720, ¶ 98.)
34
(R. 720, ¶ 97.)
29
30
40
96a
Despite conclusory allegations to the contrary, the factual allegations in
Plaintiff’s complaint do not support a cause of action for First Amendment
retaliation. Plaintiff simply reports that, in her role as a teacher, she complained to
her supervisors regarding how students’ discipline referrals were handled, how
another teacher handled a student’s classwork in accordance with his IEP, and
Plaintiff’s concerns that flowed from those issues.35
To state a claim of retaliation for protected speech under the First
Amendment, the employee must show:
(1) the employee's speech is on a matter of public concern;
(2) the employee's First Amendment interest in engaging
in the speech outweighs the employer's interest in
prohibiting the speech to promote the efficiency of the
public services it performs through its employees; and (3)
the employee's speech played a “substantial part” in the
employer's decision to demote or discharge the employee.
Anderson v. Burke County, Ga., 239 F.3d 1216, 1219 (11th Cir. 2001). When a
“public employee speaks not as a citizen upon matters of public concern, but instead
as an employee upon matters only of personal interest,” the employee’s speech is
not protected. Connick v. Myers, 461 U.S. 138, 147 (1983).
When, as here, an employee makes statements pursuant to her official duties,
such statements are not constitutionally protected speech. Slay v. Hess, 621 Fed.
Appx. 573, 575 (11th Cir. 2015) (citing Garcetti v. Ceballos, 547 U.S. 410, 421
35
(R. 704-705, 707, 725-729.)
41
97a
(2006)). The employee plaintiff in Slay alleged that she was retaliated against for
complaining that she was being asked to falsify her timesheets. Id. In affirming the
dismissal of her complaint, the United States Court of Appeals, Eleventh Circuit,
stated:
In complaining to her superiors at work about how time
was allotted, she was speaking as an employee, and when
a government employee speaks as an employee “there can
be no First Amendment issue, and the constitutional
inquiry ends.” Boyce v. Andrew, 510 F.3d 1333, 1343
(11th Cir.2007); see also Abdur–Rahman v. Walker, 567
F.3d 1278, 1283 (11th Cir.2009) (holding that “the reports
of the inspectors to their supervisors about sewer
overflows they were required to investigate are not
protected under the First Amendment”).
Id. at 576. Plaintiff here is not entitled to constitutional protection for speaking on
issues that pertained to her duties as a school teacher. Instead, her statements are
due to be viewed in the same manner as the Eleventh Circuit viewed the plaintiff’s
in Slay:
When Slay complained to her superiors that she was being
required to falsely allot her time on her time sheets, she
was performing her official duties as an employee and was
speaking as an employee and not as a citizen. “Speech that
owes its existence to the official duties of public
employees is not citizen speech even if those duties can be
described so narrowly as not to mandate the act of
speaking.” Abdur–Rahman, 567 F.3d at 1285. Slay's
amended complaint fails to state a First Amendment
retaliation claim.
Slay, 621 Fed. Appx. at 576.
42
98a
Plaintiff’s only other allegation contained in her complaint, that she has not
been re-hired because of this litigation,36 does not resuscitate her First Amendment
claim. The threshold analysis is again whether the filing of her lawsuit constituted
protected speech on a matter of public concern. Badia v. City of Miami, 133 F.3d
1443, 1445 (11th Cir. 1998) (“If only of purely personal concern, the speech is not
protected by the First Amendment.”). Although there is no bright line rule in the
Eleventh Circuit, the following has been gleaned from the circuit’s opinions:
Nonetheless, taking guidance from the Eleventh Circuit's
decisions in cases involving similar issues, this court is
convinced that when—in the context of a single-plaintiff
EEOC charge or court complaint—an employee
complains that he was the victim of discrimination and/or
retaliation and does so for personal benefit, the main thrust
of such speech will rarely, if ever, qualify as speech on a
matter of “public concern.”
Henry v. City of Tallahassee, 149 F. Supp. 2d 1324, 1328 (N.D. Fla. 2001). Plaintiff
in this matter complains only of her own perceived mistreatments and seeks, just as
the plaintiff in Henry did, to “further [her] own private interests rather than to raise
issues of public concern.” See id. at 1330. Accordingly, Plaintiff’s proposed
Amended Complaint for retaliation failed to state a cause of action. Allowing
Plaintiff to amend her complaint and proceed under that theory of liability would
36
(R. 707, ¶ 38.)
43
99a
have, therefore, been futile. As such, her request for leave to amend was properly
denied. See Thompson, 862 So. 2d at 770.
Under the foregoing authorities, the School Board maintains that was not an
abuse of discretion for the Circuit Court to deny Plaintiff’s Motion to Amend and
the order below is due to be affirmed.
CONCLUSION
The record on appeal supports the Circuit Court’s well-reasoned orders both
granting the School Board’s summary judgment and denying Plaintiff’s belated
prayer for leave to amend. The School Board asks that this Court simply affirm the
orders below.
44
100a
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been
furnished by electronic mail to Cecile Scoon, Esq., Peters and Scoon, at
cmscoonl@knology.net; cmscoon2@knology.net, this 20th day of September,
2017.
EAT , R K. HUDSO
Florida Bar No.: 0091 178
DIXON Ross MCCLOY, JR.
Florida Bar No.: 0262943
HARRISON SALE MCCLOY
Post Office Drawer 1579
Panama City, FL 32401
Telephone: (850) 769-3434
Attorneys for Defendant/Appellee
45
101a
CERTIFICATE OF COMPLIANCE
I HEREBY CERTIFY that the foregoing Answer Brief of Appellee was
prepared using Times New Roman 14-point font in compliance with Florida Rule of
Appellate Procedure 9.210(a)(2).
EATHER K. HUDSON
Florida Bar No.: 0091178
DIXON Ross MCCLOY, JR.
Florida Bar No.: 0262943
HARRISON SALE MCCLOY
Post Office Drawer 1579
Panama City, FL 32401
Telephone: (850) 769-3434
Attorneys for Defendant/Appellee
46
102a
RECEIVED, 8/28/2017 11:43 PM, Jon S. Wheeler, First District Court of Appeal
IN THE FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
L.T. No. 13-002015CA
Court of Appeals Case No. 1D17-0980
Appellant,
JOHANNA BEANBLOSSOM
Vs.
Appellee,
BAY DISTRICT SCHOOLS, BAY COUNTY, FLORIDA
APPEALED FROM
THE CIRCUIT COURT FOR THE FOURTEENTH JUDICIAL CIRCUIT
OF THE STATE OF FLORIDA, IN AND FOR BAY COUNTY
INITIAL BRIEF OF APPELLANT,
Cecile M. Scoon, Esq.
Attorney for Appellant
FL Bar # 834556
Peters & Scoon
Attorneys at Law
25 East 8th Street
Panama City, FL 32401
Tel: (850) 769-7825
Fax: (850) 215-0963
103a
TABLE OF CONTENTS
TABLE OF CONTENTS
page i
TABLE OF CITATIONS
page ii
STATEMENT OF THE CASE
page 1
SUMMARY OF THE ARGUMENT
page 10
ARGUMENT
page 11
I. STATE'S UNEMPLOYMENT RECOUPMENT
DETERMINATION NOTICE AND STATEMENTS
RELIED UPON BY APPELLANT NEGATES
NEED TO FILE NOTICE UNDER FS 768.28
II. AMENDMENT SHOULD BE ALLOWED
WHEN AMENDMENTS SIMILAR TO
INITIAL COMPLAINT AND NOT FUTILE
CONCLUSION
page 11
page 14
—page 18
CERTIFICATE OF SERVICE
page 18
CERTIFICATE OF COMPLIANCE
page 19
(i)
104a
TABLE OF AUTHORITIES
State Cases
Page
Brown v Montgomery Ward,& Co. 252 So 2d 817 (1DCA 1971)
14
Dimick v. Ray,
774 So. 2d 830, 831 (Fla. 4th DCA 2000)
10, 14
Gate Lands Co. v Ponte verse Beach Condominium, 715 So 2d 1132 (5 DCA 1998)
14
Dukanauskas v. Metro. Dade Cty.,
378 So. 2d 74 (Fla. 3d DCA 1979)
17
Noble vs Martin Mem'l Ass'n Inc. 710 So 2d 567 (4DCA 2016)
Yun Enters. v. Graziani,
840 So. 2d 420, 422-23 (Fla. 5th DCA 2003)
p 14
State Statutes
Page
p 17
Fla. Stat. § 768.14
10,11, 13
Fla. Stat. § 768.28
—11,
Fla Stat. 443
13
Other Authorities
Page
FRAP 9.11()
12
105a
STATEMENT OF THE CASE AND FACTS
1.
The Appellant began her teaching for Bay District Schools on or about
1985. App. R. 241. (lrst Aff Beanblossom Nov '15)
2.
After a hiatus from work she applied for and was hired for a special
needs teaching position at Mowat Middle school by the Bay District
Schools in 2013. App. R. 563. (2d Aff Beanblossom May '16)
3.
There were several students in Ms Beanblossom's classes that would bully
the other students. App. R. 563 (2d Aff Beanblossom May '16)
4.
Ms. Beanblossom would write the students up and seek assistance
from the principal and assistant principal. App. R. 563.
5.
The principal and assistant principal failed to give appropriate support
to Ms. Beanblossom in providing discipline to the students and
communicating with the parents about the discipline problems. App. R.
563-564. (2d Aff Beanblossom May '16)
6.
In April 2013, Ms. Beanblossom wrote to the Principal and sent a
computer generated report about the bullying to the District office
responsible for stopping and monitoring bullying. App. R. 563-564. (2d
Aff Beanblossom May '16)
7. In April 2013, Ms. Beanblossom wrote to her principal complaining about
another teacher essentially doing the school work for another student
106a
who had special needs. App. R. 75-79. (Beanblossom's texts and emails
to principal)
8
On numerous occasions throughout the spring 2013, the parent of the
student that was bullied went to the Mowat principal and administration
and asked for assistance in stopping her child from being bullied. App.
R. 560 (Aff Faircloth)
9.
The Mowat principal and administration failed to provide proper
support to the parents and the teacher (Ms. Beanblossom) to avoid
bullying. App. R. 560 (Aff Faircloth), 563-564. ( 2d Aff Beanblossom
Nov '16)
10.
Throughout the spring 2013, the parent of the student that was bullied
went to the School District Office set up to handle bullying and asked
for assistance in stopping her child from being bullied. App. R. 560 (Aff
Faircloth)
11. The School District Office set up to handle bullying failed to provide proper
support to the parents and the teacher (Ms.
Beanblossom) to avoid bullying.
App. R. 560. ( Aff Faircloth)
12.
The School District office had a written set of guidelines directing the
principals and the Bay district School Office to prevent bullying and
physical threats to both students and teachers. App. R. 462-482. (Anti
Bullying Manual)
2
107a
13.
The Mowat administrators regularly tore disciplinary reports that Ms
Beanblossom and other parents wrote up. App. R. 563. (2c1Aff Beanblossom
May '16)
14.
The School District Office did not abide by its own written guidelines and
principals on many occasions. App. R. 560 (Aff Faircloth)
15.
The superintendent was informed about many of the complaints about
bullying and he failed to take appropriate corrective action leaving
students and teachers vulnerable to physical and emotional threats.
App. R. 560. (Aff. Faircloth)
16. Within about a month after submitting her last report about students being
bullied and lack of administration help to stop the bullying, Ms Beanblossom
was summarily called into her principal's office and told to sign her resignation
papers. App. R. App. R. 257 (Aff Sheffield).
17.
On or about May 23 2013, Mr Sheffield called the District Schools human
Resources Officer told her that he wanted to terminate provisional
teacher because several parents had come in and complained that she
was seating the students in her class according to their race and that she
preferred white students over black students. App. R. 347 (Dep Michelin
p 23- line 1 - 13).
3
108a
18. No one in the school administration or at the Bay District Office asked Ms.
Beanblossom her side of the story before the decision to terminate was
made. App. R. p 341 (Dep Michelin p 23 line 14- 23).
19.
The human Resources Officer, Sharon Michelin, stated in deposition
that the Bay District Schools never looks into the veracity of a
principal's complaints against a teacher if they are provisional or
terminated within the 180 days of hire. App. R. 341 (Dep Michelin p 23
line 16- p 26 line 20.
20.
Ms. Michalik stated that looking into the allegations to be sure there
is no discrimination or retaliation was "irrelevant." Her job was to fire
anyone that the principal asked her to fire. App. R. 341 (Dep. Michelin p
23 line 16- p 26 line 20).
21.
Ms. Michalik testified that Mr. Sheffield had not told her that Ms.
Beanblossom had filed several complaints that Sheffield and his
administrators were failing to protect students and teachers from
physical and emotional bullying, shortly prior to his decision to
terminate her. App. R. 344 (Dep Michelin p 26 line 21- p 27 line 10).
22.
Ms. Michalik testified that she was aware that not looking into a
principals allegations of wrong doing against a teacher could allow
discrimination and retaliation. App. R. 342 (Dep Michalik p 24 line 25p 26 line 12).
4
109a
23
Ms. Michalik testified that even if she had known that Ms.
Beanblossom had recently complained about the principal failing to
protect her and students from bullying , shortly prior Mr Sheffield's
decision to terminate Ms Beanblossom, it would not have made any
difference. App. R. 347 (dip Michelin p 27- 25- p 28 line 21)
24.
Ms Michalik testified that she had not read any statements against Ms
Beanblossom and had questioned no one about the allegations against
her and that was customary practice to meet an employee who is
recommended for termination and then fire them within five minutes
without a prior investigation. App. R. (346 Dep Michelin p 28 line 7 - p
29 line 19)
25.
Ms. Beanblossom was terminated the same day that she was told to resign
her position. App. R 346 (Dep Michalik p 28 line 7 - p 29 line 19).
26.
On the day she was terminated , Ms Beanblossom contacted the
School District's Human Resources Office and applied for a substitute
teacher position. App. R. 242 (1rst Aff Beanblossom para 10)
27
Ms. Beanblossom was ready to be hired to be a substitute teacher and
that all paperwork was in place for her to start doing substitute teacher
work immediately. App. R. 242 (1 rst Aff Beanblossom para 10)
28.
A short time later Ms. Beanblossom was called and told that the
District Office Human Resources Director, Sharon Michalik personally
5
110a
told the Substitute Teacher Office that Ms. Beanblossom could not work
as a substitute and her substitute button was turned off. App. R. 242 (lrst
Aff Beanblossom para 10)
29.
In deposition, Ms Michalik stated that she alone can turn off an
employee's substitute employee button that will disallow them from
working. App R 350 (Dep Michalik p 75 line 15- 18)
30.
Ms. Beanblossom filed a lawsuit complaining that she was wrongfully
terminated in retaliation in violation of FS 112.3187. App. R. 011-031.
31.
Sharon Michalik stated in depositions that Ms Beanblossom's
chances for employment at the school board would improve if she
dismissed her case. App. R. 355 (Dep Michlaik p 78 line 21-25).
32.
Ms. Beanblossom has applied numerous times for School District
employment for positions that she is qualified for that are difficult to fill
because there is a critical shortage of teachers that are qualified to fill
the positions. App. R. 243 ( lrst Aff Beanblossom para 12-13)
33.
Ms. Beanblossom has had great interviews with the teachers but then
she does not get the job and the positions has been readvertised after her
interviews. App. R. 243 (lrst Aff Beanblossom para 12-13)
34.
Ms. Beanblossom has applied for over sixty jobs with Bay District
Schools that she was qualified for but she did not receive the position.
App. R. 243 (lrst Aff Beanblossom para 12-13)
6
111a
35.
The School District also filed a complaint with the Department of
Education against Ms. Beanblossom alleging that she treated children
differently based on race, but this determined to be unfounded. App. R.
243 (lrst Aff Beanblossom para 14)
36.
Bay District Schools placed a copy of Ms Beanblossom's lawsuit in
her personnel records which was inappropriate according to ms
Michalik App. R. 243 (lrst Aff Beanblossom para 13) App. R. 284 Dep
Michalik p 20 line 4-25)
37.
The principal, Mr Sheffield, signed a letter and several sworn
affidavits stating that several black parents had come to him and given
him statements complained about disparate treatment of the students
based on race. App. R.
38.
Through discovery and depositions, it was proven that no parents had
made complaints about Ms Beanblossom treating students differently
based upon race. App. R.
39.
The District School Office stated in response to discovery requests
that Mr. sheffield was incorrect when he said he had statements from
parents and students that he based his decision to terminate Ms
Beanblossom on. App. R.
40.
Mr. Sheffield had no statements whatsoever when he fired Ms
Beanblossom although he signed an affidavit stating that the reason why
7
112a
he fired Ms Beanblossom was because of the written statements made
by the parents and the children. App. R.
41.
Bay District Schools continued the falsehood against Ms.
Beanblossom and filed another false statement against her in court,
January 2015, well knowing that the statements were false.
42.
Bay District Schools also caused the State of Florida's Department of
Economic Opportunity to demand repayment of 275.00 alleged
overpayment of unemployment benefits and stated that failure to pay
would cause a judgment in court. App. R. 696-697.
43.
The District Office was also aware that Mr. Sheffield used bullying
tactics against his employees if they spoke out as this was witnessed by
Human Resources Manager, Sharon Michalik. App. R. 499 (Dep
Montague p 16 line 3 - p 20 line 8)
44.
A teacher also complained about the bullying tactics of Mr. Sheffield
and sent that complaint to the superintendent of base district schools.
App. R. 549-552 (email complaints from Montague to Superintendent
Sheffield )
45.
Appellant was told by agent of Division of Risk Management that there
was no need to file notice with the Division of Risk Management
because it did not take any action on behalf of school boards and
Appellant did not file such a notice. App. R. 057, Response 14.
8
113a
46.
On July 22, 2016, the Bay District School Office filed a Motion for
Summary Judgment on the case. App. R 441-449.
47.
On August 19, 2016, Appellant filed a motion to compel responses to
discovery responses that had been outstanding for over a year. App. R.
668-676.
48.
On October 21, 2016, Appellant filed a Response to the Motion for
Summary Judgment and also sought leave to amend its negligent
supervision complaint to a claim for 1983 violation under color of state
law. App. R. 68- 690,
49.
On November 7, 2016, Appellant filed a separate Motion for Leave to
Amend attaching the proposed complaint. App. R. 698-739
50.
On January 5 2017, the court denied the motion to amend and granted
the motion for summary judgment. App. R. 763
51.
On January 20, 2017, Appellant filed a Motion for Rehearing. App.
R. 782- 792.
52.
On February 7, 2017, The Court denied the motion for rehearing. App.
R. 797.
53.
Appellant filed her Notice for of Appeal on March 8, 2017, App. R.
837-847.
54.
Appellant filed an Amended Notice of Appeal on April 4, 2017.
9
114a
SUMMARY OF THE ARGUMENT
Appellant contends that the Notice of Disqualification sent to her claiming a
275.00 unemployment benefits overpayment and stating that it could result in a
civil judgment against her, triggered the exception to the requirement of her having
to give prior notice to the Dept of Financial Services pursuant to FS 768.14. In
addition, the state indicated that such notice was unnecessary and thus it should be
waived pursuant to estoppel.
Furthermore„ since there were not numerous amendments, no trial date was
set, and the proposed amendment was based upon significant violations of the law
that were based on the same acts and transactions as the original complaint, denial
of leave to amend was an abuse of discretion. Dimick V Ray, 774 so. 2d 830 (4
DCA 2000).
10
115a
ARGUMENT
I. STATE'S UNEMPLOYMENT RECOUPMENT
DETERMINATION NOTICE AND STATEMENTS
RELIED UPON BY APPELLANT NEGATES
NEED TO FILE NOTICE UNDER FS 768.28
The Standard of Review of Order on Motion for Summary Judgment is de Novo.
The Appellant contends that Notice of Disqualification that she received
from the State of Florida through its Agency, Florida Department of Economic
Opportunity, stating that Bay District Schools required her to repay
unemployment compensation that she had been paid, met the statutory elements
listed in Florida Statute 768.14 so that no Notice to the Dept. of Financial Services
was required before Appellant filed suit. App. R. 696-697.
The purpose of F.S.768.14 is to prevent the state of Florida from being
surprised that there is litigation against the state. The requirement to provide
Notice to the State financial officer is so that the state is able to construct a defense
and to have an opportunity for an early resolution of a dispute.
When the government itself initiates the claim against an employee then the law
allows a suit to be filed without the normal FS 768.28 notice.
11
116a
In the case at bar, the Notice of Disqualification and demand for recoupment
stated that failure to pay would result in a civil court judgment against Appellant.
In essence, this notice was like the Summons for a a lawsuit that also required a
response within twenty days or a final judgment would be had against the person
who was disqualified.
The Notice stated:
FAILURE TO PAY THIS OVERPAYMENT COULD RESULT
INA CIVIL COURT JUDGMENT. RECORDING THIS
JUDGMENT COULD HAVE AN ADVERSE AFFECT ON
YOUR FUTURE CREDIT. App. R. 696
The notice was issued by the State of Florida asserting a claim of 275.00
which is over the 200.00 minimum required in order to trigger the exception. App.
R. 696-697.1t stated that the Appellant had twenty days to respond to the claim or
action would be taken to recoup the monies.The notice also said that the
determination had been made and that she had twenty days to file an appeal. Again,
this is strikingly similar to the civil procedure used in legal action taken in the State
of Florida.The Notice was also like an order determining fault and liability as the
only way to change it was to appeal. See FRAP 9.110.
Appellant contends that this quasi-judicial determination of the state about a
disputed amount of unemployment is essentially the equivalent of the state having
filed suit and made a determination that would result in actual deprivation of
12
117a
property in the form of money from the Appellant. Appellant did not receive a
notice of an intent to assert a claim. This was an actual determination that the state
had made that it could proceed on and the only way that the Appellant could stop it
was to file an appeal. the determination was made pursuant to F.S. 443 which gives
many judicial powers to the Dept. Of Economic Opportunity.
This is essentially what is contemplated by FS 768 .14, when it talks about
the ability of the putative plaintiff to be able to sue without first filing a notice with
the Division of finance.
In addition, Appellant contends Dept of Financial Services. Appellant
contends that the office of the Division of risk management directed the Appellant
to not file her Notice of Intent to file a claim because the division took no action on
cases filed against school boards. Given that misleading statement of the law by
the agency of the state, Appellant reasonably relied to her detriment upon the
statements of the agency and the requirement to file a notice of intent to sue should
be waived under these circumstances. App. R. 057, Response 14.
Therefore, the trial court erred when it determined that the Notice of
Disqualification and the promissory estoppel was not sufficient to trigger the
exception to the need to file a notice with the Division of Financial Services.
13
118a
II. AMENDMENT SHOULD BE ALLOWED
WHEN AMENDMENTS SIMILAR TO
INITIAL COMPLAINT
The Standard of Review of Order on denying a motion to amend is an abuse of
discretion. In addition, as a general rule, refusal to allow an amendment will be
considered an abuse of discretion. Gate Lands Co. v Old Ponte Vedra Beach
Condominium, 715 So 2d 1132 (5 DCA 1998).
FRCP 1.1.190 (c) provides that amendments should bet liberally allowed.
Case law has established that all doubts should be resolved in favor of the party
moving for leave to amend. Furthermore, it is well settled that the appellate courts
will find an abuse of discretion if in the denial of a motion for leave to amend
absent these factors: 1. Prejudice to opposing party, the privilege to amend has
been abused, or amendment would be futile. Dimick v Ray, 774 So. 2d 830, (4
DCA 2000).
In the case at bar there was only one proposed amended complaint
proferred,1 thus there was no abuse of this pleading and thus Noble vs Martin
Mem'l Hosp' Ass'n, Inc. 710 so 2d 567 (4 DCA 2016) ( holding that numerous
amendments should not be allowed), Brown v Montgomery Ward & Co. 252 so 2d
1 Appellant did alert that the parties that he would be filing a motion for leave to amend with a
proposed amended complaint prior to filing the motion for leaver to amend with the proposed
amended complaint.
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817 (1DCA 1971) (holding that when a trial date is set and numerous leaves to
amend granted, summary judgment may be warranted) that can be easily
distinguished.
The amended complaint was not simply filed to frustrate summary judgment
but because the Appellant had a legitimate claim of retaliation pursuant to policy
and practice of the Bay District Schools of not ever investigating the veracity of
claims agent provisional teachers as the Human Resources Manger testified that
she was unconcerned about such things as her job was only to follow the contract
and it gave her the right to fire without just cause and she did so every time. She
testified that it was customary to never investigate any claims made against a
provisional teacher because the contract does not require it even though a principal
could be retaliating or discriminating unlawfully. App. R. 341-344 ( Dep Michalik
p 23 line 10- p 29 line 22.
The record was also replete with Bay District Schools ignoring its own antibullying rules and regulations in that it allowed a principals known for screaming
in the face of female teachers and calling them liars too remain employed. App. R.
499 (Dep. Montague p 16 line 3- p20 line8), App. R. 549-552)It also had a pattern
and policy of failing to protect its students and teachers by throwing away
disciplinary reports written by teachers and punishing teachers for speaking up and
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complaining in violation of the First Amendment rights to free speech. App. R.
243 (Aff Beanblossom para 13) App. R. 284 (Dep Michalik p 20 line 4-25)
The record of retaliation was clear with regards to Appellant and to others
who spoke up like another teacher, Ms Montague who was screamed at by the
same principal Mr. Sheffield. App. R. 499 (Dep. Montague p 16 line 3- p20 line8),
App. R. 549-552). In addition, with regards to Appellant, the Human Resources
officer stated outright that Appellant's chances of getting employment as a
substitute teacher would improve via she dropped her legal case. App. R. 355 (dep
Michalik p 78 line 21-25) Ms Michalik also stated that there was a copy of
Appellant's lawsuit in her personnel files where it did not belong. App. R. 243 lrst
Aff. Appellant).
Finally Ms McHlaik stated that she is the decision maker who determines
that an applicant will not be allowed to be a substitute teacher and Appellant was
told by the HR clerk that Ms Michalik told the clerk that Appellant could not be a
substitute teacher although she was qualified too do so. App. R. 242 (lrst Off
Beanblossom), App. R. 350 (Dep Michalik p 75 line 15-18).
Furthermore, the initial complaint contained almost all elements of a pattern
and practice complaint against the state for deprivation of First Amendment rights
under color of law. It stated that the School district had a pattern and practice of
depriving teachers and students of their rights by refusal to provide a safe learning
environment. App. R. 011-031 (Initial Complaint para 17-20 and 59).
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In her initial complaint Appellant stated that he practice of failing to provide a safe
learning environment was well known and a common practice . App. R 011- 031.
The initial complaint also stated that many teachers and students shad
endured the same treatment and that the failure to provide a safe learning
environment was well known but administrators systemically threw away
disciplinary reports or failed to taker corrective action with the students and their
parents. App. R. 011-031. Appellant also stated that the failure to provide a safe
learning environment was brought to the attention of Bay District Schools but no
corrective action was taken.
Under these circumstances, the school board was well placed on notice of
the alleged wrongs of its agents and the request to amend the complaint to more
specifically name a closely related action cause of action should have been
authorized. Dausman v Hillsborough Area Reg'l Transit, 898 So. 2d 213 (2 DCA
2005) (leave to amend should be freely given in general and even more so when
the amendments is based upon the same conduct or transactions as the original
complaint).
Under these circumstances, it was error for the court to grant summary
judgment. Yup Enters., Ltd v Grazani , 840 So.2d 420 )5 DCA 2003) (holding a
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party may with leave of court amend a pleading after hearing and ruling on a
motion for summary judgment)
CONCLUSION
WHEREFORE for the foregoing reasons, Appellant contends that the Order
granting summary Judgment and denyingAppellant's motion for Leave to Amend
should be reversed.
Cecile M Scoon /s/
Cecile M. Scoon, Esq.
Attorney for Appellant
Johanna Beanblossom
Peters & Scoon
FL Bar # 834556
25 East 8th Street
Panama City, FL 32401
Tel: (850) 769-7825
Fax: (850) 215-0963
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and exact copy of the foregoing
Appellant's Initial Brief has been filed electronically and thereby electronically
served by email on Appellee's attorney Dixon Ross McCloy, Jr. Esq. at
rmccloy@hsmclaw.com and Heather Hudson , Esq. at hhudson@hsmclaw.comand
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Casey King , Esq. at
Harrison Sale & McCloy, 304 Magnolia Ave., PanamaCity,
Florida 32402-1579, Attorneys for the Defendant, Bay District schools located at
1311 Balboia Avenue, Panama City, Fl 32401 on the 28th day of August 2017.
Cecile M Scoon /s/
Cecile M. Scoon, Esq.
CERTIFICATE OF COMPLIANCE
The undersigned Counsel hereby certifies that this Initial Appellant's Brief
has been submitted in Times New Roman 14-Point font in Compliance with the
Requirements of Rule 9.210 of the Florida Rules of Appellate Procedure.
Cecile M Scoon. /s
This text is long and has been trimmed here. Open the source document for the complete record.
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