In the Supreme of Florida

CASE NO. SC07-1709 LOWER TRIBUNAL CASE NOS. 4D05-4600 & 4D06-2539

PATRICIA CALDWELL, Petitioner - v. - THE DISTRICT BOARD OF TRUSTEES OF BROWARD COMMUNITY COLLEGE, Respondent.

BRIEF ON OF RESPONDENT

ON DISCRETIONARY REVIEW FROM A DECISION OF THE FOURTH DISTRICT COURT OF APPEAL

James H. Wyman, Esq. Florida Bar No. 117692 HINSHAW & CULBERTSON LLP One East Broward Boulevard, Suite 1010 Fort Lauderdale, Florida 33301 Telephone: (954) 467-7900 Facsimile: (954) 467-1024 [email protected]

Counsel for The District Board of Trustees of Broward Community College

TABLE OF CONTENTS Page

TABLE OF AUTHORITIES...... iii

STATEMENT OF THE CASE AND FACTS...... 1

SUMMARY OF ARGUMENT ...... 4

ARGUMENT ...... 5

I. There Is No Conflict with Flo-Sun, Inc. v. Kirk ...... 5 II. The Opinion Below Does Not Conflict with Communities Financial...... 9

CONCLUSION...... 12

CERTIFICATE OF SERVICE...... 13

CERTIFICATE OF COMPLIANCE ...... 13

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TABLE OF AUTHORITIES

Cases 126th Ave. Landfill, Inc. v. Pinellas County, 758 So. 2d 721 (Fla. 2d DCA 2000) ...... 9 City of Coral Gables v. Fortun, 785 So. 2d 741 (Fla. 3d DCA 2001) ...... 9 Communities Fin. Corp. v. Dep't of Envtl. Reg., 416 So. 2d 813 (Fla. 1st DCA 1982)...... 4, 8, 9 Criterion Ins. Co. v. Dep’t. of Ins., 458 So. 2d 22 (Fla. 1st DCA 1984) ...... 9, 10 Dep’t of Envtl. Reg School v. Oyster Bay Estates, Inc., 384 So. 2d 891 (Fla. 1st DCA 1980) ...... 9 Dep’t of HRS v. National Adoption Counseling Serv., Inc., 498 So. 2d 888 (Fla. 1986) ...... 8 Florida Star v. B.J.F., 530 So. 2d 286 (Fla. 1988) ...... 7, 8 Flo-Sun, Inc. v. Kirk, 783 So. 2d 1029 (Fla. 2001)...... 4, 5, 6 Gulf Pines Memorial Park, Inc. v. Oaklawn Memorial Park, Inc., 361 So. 2d 695 (Fla. 1978) ...... 9 Hardee v. State, 534 So. 2d 706 (Fla. 1988) ...... 1, 7 Orange County v. Game & Fresh Water Fish Comm’n, 397 So. 2d 411 (Fla. 5th DCA 1981)...... 9 Reaves v. State, 485 So. 2d 829 (Fla. 1986)...... 1, 7 Reed v. City of Hollywood, 483 So. 2d 759 (Fla. 4th DCA 1986)...... 9

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STATEMENT OF THE CASE AND FACTS

Petitioner’s brief improperly includes alleged facts that are entirely beyond the four corners of the Fourth District’s opinion below. In determining jurisdiction based on an express and direct conflict, the Court is limited to the facts apparent on the face of the opinion that the petitioner seeks to have reviewed. E.g., Hardee v.

State, 534 So. 2d 706, 708 n.1 (Fla. 1988); see also Reaves v. State, 485 So. 2d

829, 830 n.3 (Fla. 1986) (“The only facts relevant to [this Court’s] decision to accept or reject such petitions are those facts contained within the four corners of the decisions allegedly in conflict.”). Nevertheless, most of the facts set forth by

Petitioner purport to come from assorted trial exhibits and the trial transcript, and are not contained in the opinion below.

As set forth in the opinion, the facts of the case are as follows: Petitioner,

Patricia Caldwell (Caldwell), was employed as a provost at the central campus of

Broward Community College (BCC) pursuant to an annual contract which provided that the District Board of Trustees of Broward Community College (Board) could suspend or dismiss her “for cause pursuant to law and the rules of the State Board of

Education.” (A.1)1 After an investigation by its counsel into allegations made by

Caldwell of improprieties at BCC, the Board voted to terminate Caldwell and

1 Citation to the Fourth District’s opinion contained in the Appendix to the Petitioner’s Brief shall be “A.[page number].”

1 authorized the placement of Caldwell on paid administrative leave until the paperwork could be completed and the termination made effective. (A.1-2.)

One month later, BCC President Willis Holcombe conducted a “pre- determination hearing.” (A.2.) Although Caldwell attended with her attorney, she chose not to present any testimony or evidence. (A.2.) Holcombe subsequently informed Caldwell by letter of his decision to uphold the Board’s recommendation, indicating that Caldwell had previously been warned about problems with her job performance and that the allegations of impropriety she had made against BCC had been revealed to be without merit. (A.2.)

At the next Board meeting, Caldwell’s counsel addressed the Board and made a continuing objection on grounds. (A.2.) The Board voted to accept Holcombe’s recommendation, and provided to Caldwell written verification of her termination the following day. (A.2.) Caldwell then filed a petition with the

Board seeking a hearing pursuant to section 120.57, Florida (2002). (A.2.)

After the Board granted the request, Caldwell filed a motion to disqualify the Board from conducting the hearing and to transfer the proceedings to the Department of

Administrative Hearings. (A.2.) When the Board denied the motion, Caldwell petitioned the Fourth District for a , which the court denied. (A.2)

Caldwell then filed suit, alleging a violation of the Florida Whistleblower Act and breach of contract. (A.2.) The Board moved to dismiss the complaint for

2 failure to exhaust administrative remedies. (A.2) The trial court granted the motion in part, dismissing the whistleblower claim with leave to amend. (A.2) After amendment, the Board was granted summary judgment on the whistleblower claim, and the matter proceeded to trial on the contract claim alone. (A.2-3.)

The jury returned a verdict in favor of Caldwell, finding that the Board did not suspend or dismiss her either for cause or pursuant to State Board of Education rules. (A.3.) The Board moved post-trial to dismiss for lack of subject matter jurisdiction, again on grounds of failure to exhaust administrative remedies. (A.3.)

The trial court denied the motion and entered judgment against the Board. (A.3.)

The trial court subsequently entered a separate judgment awarding Caldwell attorney’s fees under section 448.08, Florida Statutes (2005). (A.3.)

On appeal, the Fourth District reversed. (A.5.) The court found that the trial court should have granted the motion to dismiss the complaint for failure to exhaust administrative remedies and the motion to dismiss for lack of subject matter jurisdiction. (A.3.) The court concluded that while the Board initially failed to follow the correct procedures, it rectified its error by granting Caldwell’s request for an administrative hearing. (A.4.) The court found that Caldwell abandoned the process when it became clear that the Board would be the body to conduct the hearing. (A.4.) The court further found that Caldwell had failed to demonstrate any of the exceptions to the exhaustion of remedies requirement. (A.4.)

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SUMMARY OF ARGUMENT

The Fourth District opinion does not conflict with Flo-Sun, Inc. v. Kirk, 783

So. 2d 1029 (Fla. 2001) inasmuch as what Petitioner calls the five “exceptions” to the requirement of exhaustion of administrative remedies set forth in Flo-Sun — one of which Petitioner contends the Fourth District failed to apply — are no more than five criteria used to determine whether the “no adequate administrative remedy” exception set forth in both Flo-Sun and the opinion below applies.

In addition, the Fourth District’s conclusion that Caldwell abandoned the administrative process does not establish a point of law contrary to Flo-Sun.

Further, the opinion below does not conflict with Flo-Sun on the question of the standard of review to be applied because neither decision establishes a point of law concerning the standard of review. Moreover, the facts ostensibly supporting these contentions are not set forth within the opinion below.

In addition, despite its observation that Caldwell’s failure to exhaust her administrative remedies deprived the circuit court of subject matter jurisdiction, the

Fourth District’s opinion also does not conflict with the First District’s observation in Communities Financial Corp. v. Department of Environmental , 416

So. 2d 813 (Fla. 1st DCA 1982), that the exhaustion doctrine is not jurisdictional.

The Fourth District properly found that the trial court erred in not granting the

Board’s motion to dismiss the complaint for failure to exhaust administrative

4 remedies, regardless of whether it — as have all district of appeal — deemed the doctrine to be one of effective subject matter jurisdiction.

ARGUMENT

I. There Is No Conflict with Flo-Sun, Inc. v. Kirk Petitioner contends that the Fourth District’s opinion conflicts with the opinion of this Court in Flo-Sun, Inc. v. Kirk, 783 So. 2d 1029 (Fla. 2001) because the district court applied the “wrong test” for determining whether administrative remedies had been exhausted and applied a de novo standard of review to what

Petitioner contends was an issue of fact. (Pet’r Br. at 6-7.)

According to Petitioner, the Fourth District’s opinion sets forth a three- exception test for failure to exhaust administrative remedies that conflicts with a different test of five “exceptions” set forth in Flo-Sun. Caldwell maintains that the

Fourth District opinion failed to consider the fifth “exception” in Flo-Sun, which she contends was applicable in the instant case.

Yet even a cursory reading of Flo-Sun reveals that these five “exceptions” are simply “criteria which, if satisfied, would invoke the jurisdiction of trial courts” in cases where “agency errors are so egregious or devastating that the promised administrative remedy is too little or too late.” 783 So. 2d at 1038. The

“too little or too late” type of case is thus the actual exception. Indeed, the Court clearly indicated in Flo-Sun that “the criteria outlined as a condition precedent to

5 the application of the ‘egregious or devastating agency errors’ exception to the doctrine of primary jurisdiction requires some allegation that the APA provides no remedy.” Id. at 1039. The Fourth District clearly considered this exception when it referred to cases “where the party seeking to bypass the usual administrative channels can demonstrate that no adequate administrative remedy remains available under Chapter 120.” (A.4.)

Consequently, the opinion below does not expressly or directly conflict with

Flo-Sun. It merely summarized the “no adequate remedy”/“too little or too late” exception to the doctrines of primary jurisdiction and exhaustion of administrative remedies, which the Court in Flo-Sun simply discussed in far greater detail by enumerating the five criteria used to determine if the exception applies.

Caldwell also argues that while the Fourth District correctly recited the facts of the case, “it incorrectly concluded without any record evidence” that Caldwell abandoned the administrative process. (Pet’r Br. at 8.) Contending that the Board failed to set a hearing after her writ of prohibition was denied, Caldwell maintains that this “proves [her] point that exhaustion was pointless or futile.” (Id.)

Caldwell’s assertion that “BCC controlled the proceedings and failed to actually set a hearing after the denial of the writ of prohibition” is nothing more than improper argument concerning factual matters that are not set forth within the four corners of the Fourth District opinion. See Reaves v. State, 485 So. 2d 829,

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830 n.3 (Fla. 1986). The facts as reflected in the opinion show that the Board granted Caldwell’s petition for a section 120.57 hearing, and that after the Fourth

District denied her writ of prohibition seeking to preclude the Board from conducting the hearing, Caldwell filed suit in circuit court. (A.2.) The Fourth

District’s conclusion that Caldwell abandoned the administrative process does not provide a basis for invoking this Court’s discretionary jurisdiction because it does not establish “a point of law contrary to a decision of this Court or another district court.” Florida Star v. B.J.F., 530 So. 2d 286, 289 (Fla. 1988). The Fourth

District simply applied these facts to well-settled law on the doctrine of failure to exhaust administrative remedies.

Caldwell then contends that the opinion below conflicts with Flo-Sun because the Fourth District “applied the wrong standard of review.” (Pet’r Br. at

8.) As support for this contention, Caldwell again refers to purported facts that are not contained within the four corners of the opinion below, specifically what factual findings were requested by the jury and the evidence introduced at trial.

Not only are such purported facts improper to consider, see Hardee v. State, 534

So. 2d 706, 708 n.1 (Fla. 1988), but it also bears noting that the opinion below found error not in the trial proceedings, but rather in the much earlier failure of the trial court to grant the motions to dismiss for failure to exhaust administrative remedies.

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More to the point, Caldwell fails to identify any point of law in Flo-Sun concerning standards of review. Nor does the Fourth District opinion contain either a statement or a citation “effectively establishing a point of law” concerning standards of review. Florida Star, 530 So. 2d at 288. Even if pronouncements on the standard of review applicable to a dismissal for failure to exhaust administrative remedies could somehow be inferred from either opinion, it is well- established that inherent or “implied” conflict cannot serve as a basis for this

Court’s jurisdiction. Dep’t of HRS v. National Adoption Counseling Serv., Inc.,

498 So. 2d 888, 889 (Fla. 1986). Accordingly, Caldwell has failed to show that the

Court has subject-matter jurisdiction on the basis of conflict with Flo-Sun.

II. The Opinion Below Does Not Conflict with Communities Financial

Caldwell contends that the opinion below conflicts with the offhand observation noted by the First District that the failure to exhaust administrative remedies “is not a jurisdictional question.” Communities Fin. Corp. v. Dep’t of

Envtl. Reg., 416 So. 2d 813, 816 n.1 (Fla. 1st DCA 1982). While the Fourth

District’s opinion did characterize Caldwell’s failure to exhaust administrative remedies as having “deprived the trial court of subject matter jurisdiction over the breach of contract claim,” (A.5), such a statement was gratuitous inasmuch as the court had already found that the trial court erred in not granting the Board’s original motion to dismiss the complaint for failure to exhaust administrative

8 remedies. A Rule 1.140(b) motion to dismiss the complaint is the proper vehicle for alleging a failure to exhaust administrative remedies, Criterion Ins. Co. v. Dep’t. of

Ins., 458 So. 2d 22, 25 (Fla. 1st DCA 1984), regardless of whether a court happens to classify the exhaustion doctrine as being one of subject matter jurisdiction.

Further, Communities Financial cited as support this Court’s remark that a determination of whether a circuit court should intervene where administrative remedies have not been exhausted “is ultimately one of policy rather than power.”

Id. (quoting Gulf Pines Memorial Park, Inc. v. Oaklawn Memorial Park, Inc., 361

So. 2d 695, 699 (Fla. 1978)). Yet while perhaps not strictly a question of subject matter jurisdiction, motions to dismiss for failure to exhaust administrative remedies have effectively been treated as such by all of the district courts of appeal.

See, e.g., Dep’t of Envtl. Reg School v. Oyster Bay Estates, Inc., 384 So. 2d 891, 895 n.10 (Fla. 1st DCA 1980); 126th Ave. Landfill, Inc. v. Pinellas County, 758 So. 2d

721, 721-22 (Fla. 2d DCA 2000); City of Coral Gables v. Fortun, 785 So. 2d 741,

742 (Fla. 3d DCA 2001); Reed v. City of Hollywood, 483 So. 2d 759, 759 (Fla. 4th

DCA 1986); Orange County v. Game & Fresh Water Fish Comm’n, 397 So. 2d 411,

413 (Fla. 5th DCA 1981). Indeed, the First District pointed out in a case subsequent to Communities Financial that alleging a failure to exhaust administrative remedies

“in effect challenge[s] the court’s subject matter jurisdiction to hear the case.”

Criterion Insurance, 458 So. 2d at 25 (emphasis added).

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Even had the Board solely moved post-trial to dismiss for lack of subject matter jurisdiction instead of also moving to dismiss the complaint at the beginning of the , there would still be no conflict because Communities Financial did not address the specific issue of whether failure to exhaust administrative remedies truly constitutes a question of subject matter jurisdiction that can be raised at any time. See Dep’t of HRS v. National Adoption Counseling Serv., Inc., 498 So. 2d

888, 889 (Fla. 1986) (“[I]nherent or so called ‘implied’ conflict may no[t] serve as a basis for this Court's jurisdiction.”). Given that the Board properly responded to the complaint by moving to dismiss on exhaustion grounds — irrespective of whether such grounds strictly concern subject matter jurisdiction — the opinion below does not directly or expressly conflict with Communities Financial.

CONCLUSION

For the foregoing reasons, the Court should deny review.

Respectfully submitted,

HINSHAW & CULBERTSON LLP One East Broward Blvd., Suite 1010 Fort Lauderdale, Florida 33301 Telephone: (954) 467-7900 Facsimile: (954) 467-1024 Counsel for Respondent

By:______James H. Wyman, Esq. Florida Bar No. 117692 [email protected] 10

CERTIFICATE OF SERVICE

I hereby certify that on this 12th day of October, 2007, a true copy of the foregoing BRIEF ON JURISDICTION OF RESPONDENT was served by U.S. Mail on

Bryan Yarnell, Esq., Watterson & Zappolo, P.A., 4100 RCA Boulevard, Suite 100,

Palm Beach Gardens, Florida 33410-4247.

______James H. Wyman

CERTIFICATE OF COMPLIANCE

I hereby certify that the foregoing BRIEF ON JURISDICTION OF RESPONDENT complies with the font requirements of Florida Rule of Appellate Procedure

9.210(a)(2).

______James H. Wyman

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