FRATERNAL ORDER OF POLICE, MIAMI LODGE 20, AND AFSCME LOCAL 1907, APPELLANTS,
v.
CITY OF MIAMI, APPELLEE
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Public employee unions sued the City of Miami seeking a declaratory judgment that certain Florida statutes regarding collective bargaining were unconstitutional. The trial court dismissed for lack of subject matter jurisdiction, but the appellate court reversed, holding that the complaint did not reference prior PERC proceedings and that res judicata was an affirmative defense to be raised later, not grounds for dismissal.
The court reversed the dismissal, holding that res judicata and exhaustion of administrative remedies are affirmative defenses that must be properly pleaded and cannot be established through a motion to dismiss when the complaint does not reference the agency action. The trial court must allow the City to file an answer and raise these defenses appropriately, then determine whether the constitutional challenge must proceed through PERC appellate procedures or may be brought as an independent action.
[1] A motion to dismiss is not the proper vehicle to introduce extraneous matters not referenced in the complaint, such as prior agency actions.
[2] A party's right to bring an independent action may not be precluded by prior agency proceedings unless the agency action is properly raised as an affirmative defense and…
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Join FLexlaw to unlock all legal intelligence“extraneous matters are not to be brought in by a motion to dismiss”
Establishes that res judicata and other matters outside the complaint cannot support dismissal and must be raised as affirmative defenses
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Join FLexlaw to unlock all legal intelligenceThe Fraternal Order of Police and AFSCME Local 1907 filed a declaratory decree action against the City of Miami challenging the constitutionality of S…
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BARKDULL, Judge.
The appellants, as plaintiffs, filed a declaratory decree action seeking a ruling that Sections 447.301(2) and 447.309(5), Florida Statutes (1977) were unconstitutional, naming the City as a defendant because of its actions under the statutes in collective bargaining agreements with certain of their employees. The City filed a motion to dismiss, alleging that the plaintiffs had been given notice of and, in fact, that plaintiffs filed a memorandum of law in an action before the Public Employees Relations Commission 1 that had lately been pending wherein the City sought a request for declaratory statement. The trial court granted the motion to dismiss upon the ground that it lacked subject matter jurisdiction, the plaintiffs being limited to their right of appeal of the final agency action of PERC to a district court of appeal pursuant to Section 447.504, Florida Statutes (1977).
We reverse upon the authority of Coulter v. Davin, 373 So. 2d 423 (Fla. 2d DCA 1979) and the reasoning contained therein. In the instant case the matter was not ripe for a determination that the PERC proceedings were in fact res adjudicata and prevented the instant independent action. Nothing in the plaintiffs’ complaint referred to the agency action; extraneous matters are not to be brought in by a motion to dismiss [see: Stone v. Stone, 97 So. 2d 352 (Fla. 3d DCA 1957); Hembree v. Reaves, 266 So. 2d 362 (Fla. 1st DCA 1972); Stern v. First National Bank of South Miami, 275 So. 2d 58 (Fla. 3d DCA 1973); Beach Roundhouse Town Corp. v. Skinner, 356 So. 2d 881 (Fla. 3d DCA 1978)] and such would be appropriate to be filed as an affirmative defense.
In the cited ease (Coulter, supra) the plaintiff referred to the agency action in his complaint; this is not the situation in the instant case. Therefore, when the matter is returned to the trial court if the City, upon appropriate pleading, urges the affirmative defense of res adjudicata or lack of subject matter jurisdiction because of the appellants’ failure to pursue the appellate remedies from the PERC action, as provided by Section 447.504, Florida Statutes (1977), it will then be incumbent upon the trial judge to analyze the agency action to determine whether it is the type that an aggrieved party must appeal pursuant to Section 447.-504, Florida Statutes (1977), or whether it is the type wherein an aggrieved party may bring in an independent action. The test to establish this alleged unconstitutionality is amply outlined in the opinion in Coulter, supra.
Reversed and remanded, with directions to the trial court to require the City to file an answer, and then for the trial court to take such further proceedings as it deems appropriate under the issues as then framed.
Reversed and remanded, with directions.
. Hereinafter referred to as PERC.
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Rice v. Dep't of Health & Rehabilitative Servs., 386 So. 2d 844 (Fla. 1st DCA 1980)…978); Estuary Properties, Inc. v. Askew, 381 So. 2d 1126 (Fla. 1st DCA 1979). . Coulter v. Davin, 373 So. 2d 423 (Fla. 2d DCA 1979); E. T. Legg and Co. v. Franza, 383 So. 2d 963 (Fla. 4th DCA 1980); Fraternal Order of Police, etc. v. City of Miami, 384 So. 2d 726 (Fla. 3d DCA 1980). While we disagree with Coulter’s reasoning that a district court of appeal may not determine constitutional questions of statutory or rule validity inhering in review of agency action, Coulter’s holding on its own facts — that re…
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Morris Wimpey et ux. v. Gabriel A. Sanchez, M.D., 386 So. 2d 1241 (Fla. 3d DCA 1980)…sperm specimen to a laboratory before any sexual activities as previously instructed.” This treatment report is not a part of the complaint and cannot be considered on a motion to dismiss. Fraternal Order of Police, Miami Lodge 20 v. City of Miami, 384 So. 2d 726 (Fla. 3d DCA 1980). But even were this case before us on the grant of summary judgment, and even if the January 5, 1975, date were applicable, there is nothing to show that these instructions were ever conveyed to Mr. Wimpey. . The Wimpeys rely on…
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Smith v. Willis, 415 So. 2d 1331 (Fla. 1st DCA 1982)…that an appellate court may not consider de novo a constitutional issue which could not have been considered by the agency. The Third and Fourth Districts, although initially accepting the approach of the Second, F.O.P. and AFSCME v. City of Miami, 384 So. 2d 726 (Fla. 3d DCA 1980); Dependable Air Cond. v. Office of Treasurer, supra, now have adopted Rice’s view. See Solimena v. State Dept. of Business Reg., 402 So. 2d 1240, 1245, n. 6 (Fla. 3d DCA 1981), and 2829 Corp. v. Division of Alcoholic Beverages, 41…
Authorities Cited
- Stone v. Stone, 97 So. 2d 352 (Fla. 3d DCA 1957)
- Coulter v. Davin, 373 So. 2d 423 (Fla. 2d DCA 1979)
- Gustav A. Stern v. First Nat'l Bank OF S. Miami, 275 So. 2d 58 (Fla. 3d DCA 1973)
- Graham v. State, 356 So. 2d 881 (Fla. 3d DCA 1978)
- Beach Roundhouse Town Corp. v. Skinner, 356 So. 2d 881 (Fla. 3d DCA 1978)
- Hembree v. Reaves, 266 So. 2d 362 (Fla. 1st DCA 1972)
- Stoudt v. State, 266 So. 2d 362 (Fla. 1st DCA 1972)