Trial set for court period beginning in late November 2027
In response to 12th Judicial Circuit Judge Dana Moss’ Aug. 12 ruling mostly for the county in the Laurel Meadows lawsuit, the attorney representing the plaintiffs has filed a motion seeking Moss’ reconsideration or rehearing of her order.
Steven D. Hutton, of the Hutton & Stalls firm in Sarasota, contended in his Aug. 18 filing that Moss made “a clear legal error” in her order: Her granting of the county’s motion to dismiss Count II of the complaint, which regarded the plaintiffs’ claim that the county’s negligence had resulted in major damage to their homes and businesses from flooding produced by Tropical Storm Debby in early August 2024.
Moss had dismissed that count with prejudice, Hutton pointed out, which meant that he could not file an amended complaint that used an expanded or different legal argument in alleging the county’s negligence.
In her ruling, Moss explained that the claim for negligence regarding the alleged failure of a Cow Pen Slough dike must be struck because state law “affords [local governments] immunity for damages caused by the partial or total failure of stormwater management systems and appurtenant works.”
A Sarasota stormwater consultant who, as a county employee, helped launch the Stormwater Environmental Utility program, determined that a breach in that dike was responsible for the Laurel Meadows flooding, as The Sarasota News Leader has reported.
Tropical Storm Debby dropped as much as 18 inches of rain on areas of the county over 36 hours, Rich Collins, director of the county’s Emergency Services Department, explained to the County Commission in late August 2024.
In a related matter, Circuit Judge Hunter W. Carroll has set a non-jury trial on the Laurel Meadows case for the period that begins on Nov. 29, 2027 and runs for three weeks. The trial would be held at the Judge Lynn N. Silvertooth Judicial Center located on Ringling Boulevard in downtown Sarasota.
Another document in the case docket says that the parties believe the trial will last five to seven days.
The News Leader has learned from 12th Circuit documents that Carroll is the judge responsible for the Major Trials Division, in accord with an Aug. 3 administrative order.
‘An absolute right’
In his Aug. 18 motion, attorney Hutton wrote that a recent opinion by the Fourth District Court of Appeal, relying on the 2005 Florida Supreme Court ruling in Boca Burger, Inc. v. Forum, “is directly on point,” in regard to Judge Moss’s decision on the negligence claim.
He explained, with emphasis, “In Boca Burger, the Florida Supreme Court explained that ‘[u]nder the plain language of the first sentence of [Florida rule of Civil Procedure] 1.190(a), a plaintiff has an absolute right to amend the complaint before a responsive pleading is served.’ … Additionally, ‘a motion to dismiss is not a “responsive pleading” because it is not a “pleading under the rules.” ‘ … Consequently, ‘where a defendant has filed only a motion to dismiss following the filing of a complaint, “[t]he trial court [does] not have discretion to dismiss the action with prejudice.” ’ … This is true even if the amendment of the complaint would be futile,” the Fourth District Court of Appeal added — with Hutton’s emphasis — citing two Florida Courts of Appeal judicial precedents.
“Florida law is clear,” Hutton continued, “that the Court is without discretion to dismiss Count II with prejudice at this stage of the litigation.”
Therefore, he wrote, the plaintiffs “request that this Court enter an Order granting rehearing or reconsideration of the above issue and grant leave [for the plaintiffs] to amend Count II in their First Amended Complaint.”
The sovereign immunity argument
In the county’s April 10 Motion to Dismiss the Laurel Meadows case, or for the plaintiffs to file a “more definite statement,” Deputy County Attorney David Pearce pointed to Section 373.443 of the Florida Statutes, which he cited, with emphasis, in arguing that the county could not be found guilty of negligence in regard to the Cow Pen Slough dike:
Pearce further cited the 1916 Florida Supreme Court ruling in Keggin v. Hillsborough Cnty., which said, “Counties, being political divisions of the state, organized as a part of the machinery of the government for the performance of functions of a public nature, partake of the state’s immunity from liability, and may not be sued except in such transactions as the statute designates,” referring also to Section 373.443.
He added that because the Laurel Meadows plaintiffs were seeking the court’s ruling for them on the issue of “liability associated with a ‘partial or total failure’ and the ‘control or regulation’ of ‘stormwater management systems, dams, impoundments, reservoirs, appurtenant work, or works regulated under [Chapter 373 (of the Florida Statutes)] the County enjoys sovereign immunity as recognized by statute. … That’s what Plaintiffs allege here in their complaint — a ‘breach permitted floodwaters to seek the lower elevations to the west of Cow Pen Slough and the north of Delft Road.’ ”
Further, Pearce wrote, with emphasis, the complaint alleged, “The County, by a combination of actions and inactions, has not maintained Cow Pen Slough, and its western dike. As a result, prior to August 4, 2024, the County had failed to repair the breach in the western dike along Cow Pen Slough, south of Delft Road, thus causing the extensive flooding in Laurel Meadows from Tropical Storm Debby …”
Moreover, Pearce contended, “[T]he complaint fails to state a cause of action because it alleges a breach of the dike and a failure to repair the dike caused the damages.” Again, he wrote, “[T]he County has sovereign immunity … because a dike would be either an impoundment or part of a stormwater management system.”
Then Pearce pointed out, “Florida courts have already confirmed this interpretation of [Section 373.344 of the Florida Statutes],” with the law having evolved through a series of cases that he cited.