JODY WOLFE

v.

LILY M. RUBY

Appellee Ruby filed a petition for benefits and alleged injury while “house keeping” for Appellant Wolfe. Appellant moved for summary final order on grounds that section 440.02(17)(c)1., Florida Statutes, expressly excludes “domestic servants in private homes” from the definition of “employment.” The Judge of Compensation Claims denied the motion, and Appellant appealed. Judges of Compensation Claims are “vested only with certain limited quasi-judicial powers relating to the adjudication of claims for compensation and benefits.” Smith v. Piezo Tech. & Pro.

Adm’rs, 427 So. 2d 182, 184 (Fla. 1983).

Indeed, “[u]nlike a court of general jurisdiction, a judge of compensation claims does not have inherent judicial power but only the power expressly conferred by chapter 440.” Pace v. Miami-Dade Cnty. Sch. Bd., 868 So. 2d 1286, 1287 (Fla. 1st DCA 2004) (citing McFadden v. Hardrives Constr., Inc., 573 So. 2d 1057, 1059 (Fla. 1st DCA 1991)); Avalon Ctr. v. Hardaway, 967 So. 2d 268, 272 (Fla. 1st DCA 2007) (“Courts of Compensation Claims are not courts of general jurisdiction, and therefore do not have ‘general’ jurisdiction over any subject matter beyond that specifically conferred by statute.”); Travelers Ins. Co. v. Sitko, 496 So. 2d 920, 921–22 (Fla. 1st DCA 1986) (“We begin our analysis with the premise that workers’ compensation is purely a creature of statute. All rights and liabilities under the system are created by chapter 440, Florida Statutes, as is the deputy’s power to hear and determine issues in a workers’ compensation case.”).

In order for an individual to be considered an “employee,” within the meaning of the Workers’ Compensation Laws, the person must “receive[] remuneration from an employer for the performance of any work or service while engaged in any employment . . .” § 440.02(15)(a), Fla. Stat. “Employment” is defined as “all private employments in which four or more employees are employed by the same employer.” § 440.02(17)(b)2., Fla. Stat. An “employer” under the Workers’ Compensation Laws is defined to be “every person carrying on any employment.” § 440.02(16)(a), Fla. Stat. Most importantly, “employment” specifically excludes housekeeping services. See § 440.02(17)(c)1., Fla. Stat. (“‘Employment’ does not include service by or as . . . domestic servants in private homes.”); Smith v. Ford, 472 So. 2d 1223 (Fla. 1st DCA 1985) (holding that individuals who perform cleaning services in a private residence are domestic servants that are excluded from the statute).

In her “Motion for Final Summary Order of Dismissal for Lack of Subject Matter Jurisdiction,” Appellant attached her Affidavit stating that she does not operate a business at her private residence, does not employ four or more individuals at her private residence, and does not carry a workers’ compensation insurance policy. In response, Appellee’s Opposition to Appellant’s Motion simply states that Appellant’s Affidavit is “unauthenticated

hearsay” and “reliance on an affidavit is not a sufficient basis to merit entry of Summary Final Order.” Affidavits may be considered to determine subject matter jurisdiction. As then Judge Canady wrote in Seminole Tribe of Florida v. McCor, The question of whether a court lacks subject matter jurisdiction over a claim because that claim is barred by tribal sovereign immunity is a threshold question that is properly presented by way of a motion to dismiss, rather than by a motion for summary judgment. A motion to dismiss for lack of subject matter jurisdiction is analogous to a motion to dismiss for lack of personal jurisdiction. In considering a motion to dismiss challenging subject matter jurisdiction, a trial court may properly go beyond the four corners of the complaint and consider affidavits. 903 So. 2d 353, 357 (Fla. 2d DCA 2005) (citations omitted); see also Morgan v. Dep’t of Envtl. Prot., 98 So. 3d 651, 653 (Fla. 3d DCA 2012) (“A trial court may look to facts gathered outside the pleadings, including affidavits, to determine subject matter jurisdiction.”); Orbe v. Orbe, 651 So. 2d 1295, 1296 (Fla. 5th DCA 1995) (“A defendant may challenge the sufficiency of jurisdictional allegations of a complaint by filing a motion to dismiss, but must support his position by affidavit.”).

Once Appellant filed her Motion with her Affidavit demonstrating that the OJCC did not have subject jurisdiction, the burden then shifted to Appellee to provide a competing affidavit establishing subject matter jurisdiction. See Sutton v. Smith, 603 So. 2d 693, 697 (Fla. 1st DCA 1992) (finding that the defendant may challenge the court’s jurisdiction “by filing a motion to dismiss, but must support his position by affidavit. The burden then shifts to the plaintiff to show, by affidavit, the basis upon which jurisdiction may be obtained.”); Orbe, 651 So. 2d at 1296–97 (holding once a defendant challenges the sufficiency of jurisdictional allegations by filing a motion to dismiss with accompanying affidavit “[t]he burden then shifts to the plaintiff to show by affidavit the basis upon which jurisdiction may be obtained.”) (citations omitted).

Appellee failed to carry her burden by providing a competing affidavit demonstrating that the OJCC has subject matter jurisdiction. Thus, there is no dispute that Appellee was providing housekeeping services in a private home. The Judge of Compensation Claims lacked subject matter jurisdiction and should have granted Appellant’s motion. We reverse with direction to enter the summary final order. REVERSED. RAY and BILBREY, JJ., concur. _____________________________