STATE EX REL., DIVISION OF ADMINISTRATION, STATE OF FLORIDA, DEPARTMENT OF TRANSPORTATION, RELATOR,
v.
THE HONORABLE R. HUDSON OLIFF, AS JUDGE OF THE CIRCUIT COURT, FOURTH JUDICIAL CIRCUIT, IN AND FOR DUVAL COUNTY, FLORIDA, RESPONDENT
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The State Department of Transportation sought to dismiss a complaint by Henrietta Kinnon alleging breach of contract and fraud in connection with a drainage easement on her property. The court held that the tort claim for fraud could proceed because it accrued after sovereign immunity was waived, but the contract claim was barred because sovereign immunity had not been waived for contract actions.
The tort claim for fraud could proceed because it accrued when the fraud was discovered (after January 15, 1975), which was after the July 1, 1974 effective date of the sovereign immunity waiver for tort actions under Section 768.28. The contract claim was barred because Section 337.19(1) did not authorize suits against the Department for breach of contract, and sovereign immunity had not been waived for general contract actions.
[1] Sovereign immunity in tort actions is waived by statute to the extent of liability coverage, but the effective date of such waiver must be considered.
[2] A cause of action for fraud accrues when the fraud or deceit was or should have been discovered, which is a factual question not typically resolved at the pleadings stage…
Previewing 2 of 6 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“This cause of action, sounding as it does in fraud, accrues when the fraud or deceit was or should have been discovered.”
Establishes the temporal rule for when fraud claims accrue, allowing Kinnon's tort claim to proceed despite pre-waiver agreement date.
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Join FLexlaw to unlock all legal intelligenceHenrietta Kinnon entered into an agreement with the Department of Transportation in April 1974 regarding a drainage easement on her property. She file…
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ERVIN, Judge.
Henrietta Kinnon filed her amended complaint in two counts against the Department of Transportation. The first alleges the location and size of the drainage easement upon her property constitutes a breach of the contract she entered into with the Department. The second alleges false representations by the Department’s agents in the making of that contract. The first count sounds in contract and the second in tort. The Department moved to dismiss the complaint since the agreement was entered into in April, 1974, during which time the Department enjoyed sovereign immunity. While sovereign immunity in tort actions has been waived by Section 768.28, Florida Statutes (1975), to the extent of liability coverage, the Department contends such was not the law in April, 1974.
Section 768.30 provides the waiver of sovereign immunity for tort did not take effect for the Department until July 1,1974. As to count two, the Department argues it was and is immune from contract actions. The trial court denied the motion to dismiss and suggestion for writ of prohibition was filed in this court.
A rule nisi was entered and Ms. Kinnon answered. As to the question of tort immunity, she alleged in her complaint the construction of the drainage easement was not completed until on or after January 15, 1975. She contends it was not until that time that she could have known of any cause of action she may have against the Department. This, of course, would be after the effective date of Section 768.28. This cause of action, sounding as it does in fraud,1 accrues when the fraud or deceit was or should have been discovered.
Section 95.031(1), Florida Statutes (1975); Tullo v. Horner, 296 So. 2d 502 (Fla. 3rd DCA 1974). The question of discovery is a factual one, not appropriately passed upon at the pleadings stage. The trial judge correctly denied the motion to dismiss as to the first count.
Ms. Kinnon next argues Section 337.19(1), Florida Statutes (1975), allows contract actions against the Department. That section reads:
“Suits at law and in equity may be brought and maintained by and against the department on any claim under contract for work done; provided that no suit sounding in tort shall be maintained against the department.”
This action is not one based on a claim “under contract for work done” and is not applicable here. Statutes purporting to waive sovereign immunity are strictly construed, and must be clear and unequivocal. Seaside Properties, Inc. v. State Road Department, 121 So. 2d 204 (Fla. 3rd DCA 1960). Further, since the Supreme Court opinion in Circuit Court of Twelfth Judicial Circuit v. Department of Natural Resources, 339 So. 2d 1113 (Fla.1976), it is clear agencies are immune from contract actions generally.2
The trial judge being without subject matter jurisdiction over the count alleging breach of contract, the writ of prohibition is issued as to that portion of the complaint only.
RAWLS, Acting C. J., and MILLS, J., concur. . We may assume false representations alleged in the complaint are not negligent misrepresentations, for if so, the cause of action accrued at the time the injury took place, and not at the time of discovery. Cristiani v. City of Sarasota, 65 So. 2d 878 (Fla.1953). The injury here, the construction of the allegedly oversized drainage easement assuredly took place prior to July 1, 1974, the effective date of § 768.28.
. But see State Road Department of Florida v. Tharp, 146 Fla. 745, 1 So. 2d 868 (1941), where the Department was found to have no immunity against a suit alleging a “taking” of property in derogation of constitutional rights.
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Citator
Cited By (11 total)
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Graham Contracting, Inc. v. Dep't OF Gen. Servs., 363 So. 2d 810 (Fla. 1st DCA 1978)…rt of the Twelfth Jud. Circuit v. Dept. [*814] of Natural Resources, 339 So. 2d 1113 (Fla. 1976), impliedly receding from Gay v. Southern Builders, Inc., 66 So. 2d 499 (Fla. 1953); State ex rel. Division of Administration, Dept. of Transp. v. Oliff, 350 So. 2d 484 (Fla. 1st DCA 1977). See also Circuit Court of the Twelfth Jud. Circuit, supra at 1116, and Dickinson v. Board of Public Instr. of Dade Co., 217 So. 2d 553, 560 (Fla.1968) (dissent), concerning the use of legislative claims bills to discharge “moral…
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Dep't OF Transp. v. Burnette, 384 So. 2d 916 (Fla. 1st DCA 1980)…ge resulting from the taking in an eminent domain proceeding, and must be recovered in that proceeding, if at all. . The idea that the State impliedly contracts to pay for its torts was rejected in State ex rel. Division of Administration v. Oliff, 350 So. 2d 484 (Fla. 1st DCA 1977). . Kendry, 213 So. 2d at 27, said Tharp held that: . . . to constitute a taking, the flooding need not completely destroy all value in the property flooded. It will be recalled that the flooding which was the subject of conside…
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City OF Jacksonville v. Smith, 159 So. 3d 888 (Fla. 1st DCA 2015)…ct resolved in favor of the government and against the claimant. See § 70.001(13), Fla. Stat; Tampa-Hillsborough County Expressway Auth. v. K.E. Morris Alignment Serv., Inc., 444 So. 2d 926, 928-29 (Fla.1983); State ex. rel. Div. of Admin, v. Olijf, 350 So. 2d 484, 486 (Fla. 1st DCA 1977). In sum, because the trial court’s opinion broadens the scope of the Harris Act far beyond its intended purpose and has the potential to open the floodgates for claims under the Act against state, regional, and local govern…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State Rd. Dep't of Fla. v. Tharp, 146 Fla. 745 (Fla. 1941)
- Cir. Court OF Twelfth Jud. Cir. v. Dep't OF Natural Res. of the State of Fla., 339 So. 2d 1113 (Fla. 1976)
- Cristiani v. City of Sarasota, 65 So. 2d 878 (Fla. 1953)
- Seaside Props., Inc. v. State Rd. Dep't of the State of Fla. & Monroe Cnty., 121 So. 2d 204 (Fla. 3d DCA 1960)
- Tullo v. Horner, 296 So. 2d 502 (Fla. 3d DCA 1974)