IN THE SUPREME COURT OF FLORIDA

IN THE SUPREME COURT OF FLORIDA CLAY COUNTY UTILITY ) AUTHORITY, a ) local governmental body, corporate) and politic ) ) Petitioner/Plaintiff) ) CASE NO.SC02-131 ) v. ) ) JEA, a body corporate and politic,) ) Respondent/Defendant) ) INITIAL BRIEF ROSE, SUNDSTROM & BENTLEY, LLP Martin S. Friedman, Esq. Fl. Bar No. 199060 Daren L. Shippy, Esq. Fl. Bar No. 508810 2548 Blairstone Pines Drive Tallahassee, FL 32301 (850) 877-6555 Special Counsel for Petitioner/Plaintiff Grady H. Williams, Jr., Esq. Fl. Bar No. 887950 1279 Kingsley Ave., Ste. 117 Orange Park, FL 32073 (904)264-0441 General Counsel for Petitioner/Plaintiff

Table of Contents Page Table of Citations... Preliminary Statement... iii v Statement of Case and Facts... 1 Summary of Argument... 6 Argument A trial court should have the discretion to not apply the home venue privilege if the policy reasons behind its application do not exist... 8 Conclusion...17 Certificate of Service...18 Certification of Font Size...18 ii

Table of Citations Page Cases: Barr v. The Florida Board of Regents, 644 So. 2d 333 (Fla. 1 st DCA 1994)... 13 Board of County Commissioners of Madison County v. Grice, 438 So. 2d 392 1983)... 12, 13, 14,15 Carlile v. Game & Fresh Water Fish Commission, 354 So. 2d (Fla. 1977)... 14 Carlson-Southeast Corporation v. Geolithic, Inc., 530 So. 2d 1069 (Fla. 1 st DCA 1988)... 8, 9 City of Panama City v. Florida Department of Transportation, 477 So. 2d 646 (Fla. 1 st DCA 1985)... 13 Grice v. Board of County Commissioners of Madison County, Florida, 413 So. 2d 88 (Fla. 1 st DCA 1982)... 15 Hillsborough Association of Retarded Citizens, Inc. v. City of Temple Terrace, 332 So. 2d 610 (Fla. 1976)... 8 Jacksonville Electric Authority v. Clay County Utility Authority, 27 Fla. L. Weekly D117 (Fla. 1 st DCA January 4, 2002)... 3, 4, 5 6, 14 Panache on Park Avenue v. Panache Salon and Boutique of St. Augustine, Inc., 645 So. 2d 582 (Fla. 1 st DCA 1994)... 10, 11 Reed v. State, 470 So. 2d 1382 (Fla. 1985)... 8 Rupp v. Jackson, 238 So. 2d 86 (Fla. 1970)... 8 Smith v. Williams, 35 So. 2d 844 (Fla. 1948)... 2, 6, 15 iii

Florida Constitution, Statutes, Special Acts, Ordinances and Charters: Section 47.011, Florida Statutes (2000)... 9 Section 47.051, Florida Statutes (2000)... 9 Special Act 67-1569... 4 Special Act 94-491, Laws of Florida... 4, 9, 13, 14, 16 Special Act 99-459, Laws of Florida... 3 Chapter 164, Florida Statutes... 4 iv

Preliminary Statement Unless the context suggests otherwise, Petitioner, Clay County Utility Authority, Plaintiff below, will be referenced in this brief as CCUA. Unless the context suggests otherwise, Respondent, JEA, a defendant below, will be referenced in this brief as JEA. Unless the context suggests otherwise, AFI Associates, Inc., a defendant in the trial court and one of the developers of the Villages of Argyle DRI, will be referenced in this brief as AFI. Because the appellate record from the First District Court of Appeal will be transmitted after the filing of this brief and the trial record consists of only CCUA s Appendix and JEA s Appendix, references to the record will be to (i) CCUA s Appendix [CCUA App. ], with specific reference to the tab number and page number of the tabbed item. For example, [CCUA App. 2-5] or [CCUA App. 2-(5-6)]; and (ii) to JEA s Appendix [JEA App. ], with specific reference to the tab number and page number of the tabbed item. For example, [JEA App. 2-5] or [JEA App. 2-(5-6)]. v

Statement of Case and Facts (Statement of Case) The action in the trial court is primarily between two adjacent governmental bodies, each with its own home venue privilege, with respect to matters that (i) will occur only in Clay County, Florida (hereafter Clay County ), and (ii) relate to real property situated solely in Clay County. 1 The central issue is which governmental body, CCUA or JEA, has the lawful authority to provide water and wastewater service to that portion of a development of regional impact known as Villages of Argyle DRI situated solely in Clay County. Not at issue is which governmental body has the lawful authority to provide water and wastewater service to that part of the Villages of Argyle DRI situated solely in Duval County, Florida. 2 CCUA filed a verified complaint in Clay County against JEA and AFI for declaratory judgment and injunctive relief, both temporary and permanent. [CCUA App. 1-(1-16)] 3 The basis for CCUA s verified 1 AFI is a Florida corporation doing development business in Duval and Clay Counties, including the Villages of Argyle DRI, and whose principal office is now located in Duval County. [CCUA App. 1-2] 2 The Villages of Argyle DRI encompasses a portion of southwest Duval County and northwest Clay County. Duval and Clay Counties are adjacent to each other, with Duval County being situated immediately to the north of Clay County. 3 The executive director of CCUA, Ray Avery, also executed an affidavit that was filed at the hearing on JEA s motion to transfer venue that attested to each of the factual allegations in the Brief (continued...) 1

complaint is CCUA s assertion that (i) JEA does not have the lawful authority to provide water, wastewater or reclaimed water service to that portion of the Villages of Argyle situated in Clay County, absent CCUA s consent, (ii) CCUA has not consented to JEA providing such service, and (iii) CCUA has the overall responsibility and exclusive power to provide water and sewer services within that portion of the Villages of Argyle DRI situated in Clay County. [CCUA App. 1-(1-16)] In response, JEA filed a Motion to Dismiss for Improper Venue on the basis that venue of this action should be in Duval County. [CCUA App. 2-(1-13)] In response to a request by the trial court, CCUA filed a Brief in Opposition to Defendants Motions to Transfer Venue. [CCUA App. 3- (1-18)] After a hearing, the trial court entered its Order Denying Motion to Dismiss [CCUA App. 5-(1-2)], which was the subject of the appeal by JEA to the First District Court of Appeal. The District Court reversed the decision of the trial court, holding, Our decision in the current case is supported by none of the policy reasons discussed in Smith v. Williams.[ 4 ] Both parties here are governmental entities seeking to provide services to an area located in or adjacent to both counties. No 3 (...continued) that CCUA filed in opposition to JEA s Motion to Dismiss for Improper Venue. [CCUA App. 4-(1-2); 6-44] 4 35 So. 2d 844 (Fla. 1948). 2

efficient or economic policy is served by our decision to transfer venue from Clay County to the neighboring Duval County (two counties within the same judicial circuit). In fact, it would be more appropriate for a court sitting in Clay County to determine which entity could best provide service to residents of Clay County. However, we are still required to apply the home venue privilege because no exception exists which would allow us to decline to apply the privilege. Jacksonville Electric Authority v. Clay County Utility Authority, 27 Fla. L. Weekly D117, 118 (Fla. 1 st DCA January 4, 2002). (Statement of Facts) The facts considered by the trial court in ruling that venue of this action was proper in Clay County were undisputed. Those facts are set forth in great detail in the Appendix to CCUA s Answer Brief to the district court, including a time line/flow chart. [CCUA App. 16-1] CCUA will not restate those facts in this brief because the record of the district court will be provided to this Court. The relevant facts, however, for purposes of this Court s decision, as stated by the district court, are as follows: The Jacksonville Electric Authority (JEA)[ 5 ] is a governmental body with its principal place of business in Duval County, Florida. Clay County Utility Authority (CCUA) is a local governmental body with its principal place of business in Clay County, Florida. Both utilities claim the right to provide water and wastewater service to the Clay County portion of a 5 The Jacksonville Electric Authority formally changed its name in 1999 to JEA pursuant to Special Act 99-459; therefore, it should no longer be referred to as the Jacksonville Electric Authority. 3

development, The Villages of Argyle (Argyle). In 1986, the City of Jacksonville acquired from Du-Lay Utility Company, Inc. (Du-Lay) the right to serve all of the territory owned by Du- Lay, which included the Argyle area in both Clay and Duval County. In 1998, the Public Service Commission cancelled all of the water and sewer certificates owned by Du-Lay, including certificates relevant to the Argyle area. In 1994, the Florida Legislature by Special Act 94-491, created CCUA as an independent special authority to provide water and sewer services within Clay County. The City of Jacksonville transferred all of its [water and] wastewater assets and responsibilities to JEA in 1997. Three years later, JEA entered into a Utility Service Agreement with the developer of the property, AFI, regarding the specific terms of service of the Argyle area for both Duval and Clay Counties.[ 6 ] In December 2000, CCUA filed suit against both JEA and AFI in Clay County, alleging that the Utility Service Agreement is in contravention of Special Act 94-491, Special Act 67-1569, Chapter 164 of the Florida Statutes and other applicable laws, including the Florida Constitution. CCUA sought declaratory and injunctive relief against JEA and AFI. JEA and AFI timely filed motions challenging the venue and requesting that the case be dismissed or transferred to Duval County based on JEA s home venue privilege.[ 7 ] On January 26, 2001, the judge held a 6 Prior to JEA entering into the Utility Service Agreement with AFI, CCUA invoked and instituted with JEA the governmental conflict resolution procedures identified in Chapter 164 of the Florida Statutes with respect to the instant dispute. [JEA App. 1-(9-10)] 7 AFI s grounds for transfer were not based on the home venue privilege asserted by JEA, nor did AFI appeal the trial court s decision. 4

motion hearing at which he considered affidavits submitted by both parties, the opposition of the change of venue, and oral arguments from both parties. Four days later, the judge denied the motion for a change of venue, noting that his decision was based on the allegation in the complaint that the Defendants agreement is in contravention of... the Florida Constitution. Jacksonville Electric Authority, 27 Fla. L. Weekly at D117-118. 5

Summary of Argument A trial court should have the discretion to not apply the home venue privilege if the policy reasons behind its application do not exist. The district court said it best, Our decision in the current case is supported by none of the policy reasons discussed in Smith v. Williams. Both parties here are governmental entities seeking to provide services to an area located in or adjacent to both counties. No efficient or economic policy is served by our decision to transfer venue from Clay County to the neighboring Duval County (two counties within the same judicial circuit). In fact, it would be more appropriate for a court sitting in Clay County to determine which entity could best provide service to residents of Clay County. Jacksonville Electric Authority, 27 Fla. L. Weekly at D118. Nevertheless, the district court felt constrained by established precedent of this Court to apply the home venue privilege. 8 The facts of this case, as recognized by the district court, demonstrate why a trial court should have the discretion to decline to apply the home venue privilege if the policy reasons for the privilege are absent. Namely, this is a dispute between two governmental bodies from two adjacent counties within the same judicial circuit, each with its own home venue privilege, over which governmental body has the right to 8 CCUA disagrees with the district court s holding that the sword wielder exception to the home venue privilege does not apply to the facts of this case; however, as to that issue, CCUA will rely upon the arguments it made to the district court without further elaboration in this brief. 6

provide water and wastewater service in the county that is the principal headquarters of the governmental body initiating the litigation. This Court, therefore, should recognize an exception to the home venue privilege to permit a trial court to dispense with its application if it finds the policy reasons for applying the privilege do not exist. 7

Argument A trial court should have the discretion to not apply the home venue privilege if the policy reasons behind its application do not exist. Standard of Review The standard of review that this Court should apply in reaching its decision is presumably do novo. 9 The scope of this Court s review includes the entire decision of the district court, not merely the question certified by the district court to be of great public importance. Hillsborough Association for Retarded Citizens, Inc. v. City of Temple Terrace, 332 So. 2d 610, 612, n.1 (Fla. 1976); Rupp v. Jackson, 238 So. 2d 86 (Fla. 1970); and Reed v. State, 470 So. 2d 1382 (Fla. 1985). Law and Argument As a general rule,... venue is the plaintiff s prerogative. Carlson-Southeast Corporation v. Geolitihic, Inc., 530 So. 2d 1069, 1073 (Fla. 1 st DCA 1988). When venue is proper in more than one county, the plaintiff may choose the county in which to file the action. Carlson-Southeast Corporation, 530 So. 2d at 1073. The plaintiff s decision regarding venue is presumptively correct and the party challenging venue has the burden to demonstrate the impropriety of plaintiff s choice of venue. Carlson-Southeast Corporation, 530 9 Petitioner says presumably because it was unable to find any law specifically addressing the issue. 8

So. 2d at 1073. [T]he propriety of the plaintiff s choice is bolstered when the plaintiff seeks to litigate the case in his home community. Carlson-Southeast Corporation, 530 So. 2d at 1073. The general rule supports CCUA s choice of venue in Clay County. (Venue Under Florida Statutes) Section 47.011, Florida Statutes (2000), provides that actions may be brought in the county where a defendant resides, where the cause of action accrued or where the property in litigation is located. 10 CCUA, a neighboring governmental body to JEA, exercised its statutory prerogative to choose this action s venue by filing its Complaint in Clay County. Its choice was statutorily proper and consistent with the powers granted CCUA by the Florida Legislature under Special Act 94-491. Those powers include the power to (i) sue in the name of CCUA in order to carry out the powers and duties provided for in Special Act 94-491 or in any other law applicable to counties, (ii) restrain, enjoin or otherwise prevent the violation of Special Act 94-491, and (iii) require and enforce the use of CCUA s facilities whenever and wherever they are accessible and to require and enforce the installation and dedication to CCUA of water and/or sewer facilities and easements as a condition precedent to providing service 10 As to AFI, Section 47.051, Florida Statutes (2000), provides that an action against a Florida corporation may be brought in the county where the corporation has, or usually keeps, an office for transaction of its customary business, where the cause of action accrued, or where the property in litigation is located. 9

by CCUA or by another entity authorized by CCUA to provide interim service until CCUA s facilities are available. CCUA s cause of action accrued in Clay County. JEA intends to serve customers and receive attendant monies from persons and businesses in Clay County. The performance by JEA of the terms and conditions of the Utility Service Agreement will occur in Clay County. The effect of JEA s performance under the Utility Service Agreement in Clay County will impact citizens and businesses of Clay County. The conduct of JEA in this action is similar to the conduct of the defendant in Panache on Park Avenue v. Panache Salon and Boutique of St. Augustine, Inc., 645 So. 2d 582 (Fla. 1 st DCA 1994), in which the First District Court of Appeal found the cause of action accrued in a county other than the county where the defendant s principal place of business was located. In Panache, the plaintiff attempted to resolve the dispute of the defendant s use of the plaintiff s service name in the plaintiff s trade area without success. In its complaint filed in Clay County, the plaintiff sought, in part, to enjoin the defendant s infringement of the name Panache. The defendant responded with a motion to abate for improper venue on the basis that the defendant s principal place of business was in St. Johns County and the conduct complained of by Plaintiff occurred in St. Johns County. The district court, in finding venue was proper in Clay County, held, We conclude that advertising the sale of one s services under a competitor s service name and in 10

645 So. 2d at 584. the competitor s service area would constitute an overt action of unfair competition.... The circumstances of this case are somewhat analogous to a cause of action in libel which accrues in the county or counties where the publication is distributed or placed for sale. [citation omitted] It appears a cause of action for unfair competition, based on weekly newspaper advertisements in the counties and under the service name of one s competitor, accrues in the counties where the newspaper carrying the advertisements is distributed or placed on sale. The court also noted that, [a]lthough the advertising orders are placed in St. Johns County, it is reasonable to infer that [the defendant] expects to attract customers from Clay and Duval Counties, or it would not pay to advertise in those counties. In failing to dispute [the plaintiff s] specific allegations, [the defendant s] averments were insufficient to establish that the conduct giving rise to the action did not occur in Clay County. Thus, [the defendant] failed to overcome the presumption of correctness accorded to [the plaintiff s] choice of venue. In view of this failure, the order transferring venue from Clay County to St. Johns County constituted an abuse of discretion. 645 So. 2d at 584 (Emphasis supplied). The principles of Panache are persuasive in this case. JEA has entered into the Utility Service Agreement with the intent to install infrastructure and facilities in Clay County in order to provide water and wastewater service to Clay County residents and businesses. Absent the home venue privilege, CCUA s cause of action would be heard in Clay County. 11

(Home Venue Privilege) JEA, as a governmental body, has a common-law privilege to be sued in the county where its principal headquarters is located. The privilege is not absolute; however, the district court determined that the exceptions to the privilege do not apply to the instant case. 11 This Court in Board of County Commissioners of Madison County v. Grice, 438 So. 2d 392, 394 (Fla. 1983), wrote,... Florida is one of the jurisdictions in which the home county venue privilege for government bodies is derived from judicial development of the common law rather than legislative act. The Grice court further wrote, Modern methods of communication and transportation have weakened the policy reasons supporting the privilege while current crowded court docket conditions have strengthened the policy reasons for avoiding duplicative litigation if possible. 438 So. 2d at 394 (Emphasis supplied). In conclusion, this Court held,... that the home venue privilege is not absolute. 438 So. 2d at 395 (Emphasis supplied). There are three exceptions to the home venue privilege. The first exception applies when a plaintiff seeks judicial protection from a real or imminent danger of invasion by the state agency being sued of 11 As mentioned in footnote 8, CCUA disagrees with the district court s ruling in this regard, but will not reiterate in this brief the arguments made to that court. Instead, CCUA will confine its argument in this brief to the question certified by the district court as one of great public importance, but request that this Court review the entire decision of the district court and reverse that court s decision that the sword wielder doctrine does not apply. 12

the plaintiff s (i) constitutional, or (ii) property rights. Barr v. The Florida Board of Regents, 644 So. 2d 333 (Fla. 1 st DCA 1994). This exception is generally referred to as to sword wielder doctrine. The second exception applies when a governmental entity is a joint tortfeasor in an action and the trial court, in its discretion after considering justice, fairness, and convenience under the circumstances of the case City of Panama City v. Florida Department of Transportation, 477 So. 2d 646, 647 (Fla. 1 st DCA 1985), determines that the home venue privilege is unnecessary. The third exception applies when venue is waived by statute. 12 The district court determined that none of the recognized exceptions to the home venue privilege applied in the instant case. It also determined, however, that the policy reasons supporting the home venue privilege, likewise, did not apply. Specifically, the district court wrote, 12 Although this exception is not specifically applicable to this case, Special Act 94-491 gives CCUA the power to (i) sue in the name of CCUA in order to carry out the powers and duties provided for in Special Act 94-491 or in any other law applicable to counties, (ii) restrain, enjoin or otherwise prevent the violation of Special Act 94-491, and (iii) require and enforce the use of CCUA s facilities whenever and wherever they are accessible and to require and enforce the installation and dedication to CCUA of water and/or sewer facilities and easements as a condition precedent to providing service by CCUA or by another entity authorized by CCUA to provide interim service until CCUA s facilities are available. Inherent in the grant of these powers should be the right to enforce them in the county where the violations occur. In the instant case, CCUA should be entitled to enforce these powers in Clay County because that is where the threatened violations will occur. 13

Both parties here are governmental entities seeking to provide services to an area located in or adjacent to both counties. No efficient or economic policy is served by our decision to transfer venue from Clay County to the neighboring Duval County (two counties within the same judicial circuit). In fact, it would be more appropriate for a court sitting in Clay County to determine which entity could best provide service to residents of Clay County. Jacksonville Electric Authority, 27 Fla. L. Weekly at D118. (Absence of Policy Reasons and Trial Court Discretion) [T]he home venue privilege [is intended to] promote[] orderly and uniform handling of state litigation and help[] to minimize expenditure of public funds and manpower. Board of County Commissioners of Madison County v. Grice, 438 So. 2d 392, 394 (Fla. 1983); See also, Carlile v. Game & Fresh Water Fish Commission, 354 So. 2d 362, 364 (Fla. 1977). This Court has found that these beneficial purposes are not furthered when [a] governmental defendant is sued as a joint tortfeasor. Grice, 438 So. 2d at 394. In that context, [t]he home venue privilege, although not absolute, should be given substantial consideration in [the] process [of considering justice, fairness and convenience under the circumstances of the case,] along with the other circumstances presented and the interests of the other parties. Grice, 438 So. 2d at 395. That rationale is applicable to the instant case. The district court found the policy reasons supporting the home venue privilege do 14

not exist. 13 This leads to the conclusion, as the court in Grice v. Board of County Commissioners of Madison County, Florida, 413 So. 2d 88, 90 (Fla. 1 st DCA 1982), recognized,... [B]lind adherence to the privilege is counterproductive and contrary to the legislative purpose of promoting orderly and uniform handling of state litigation and minimizing expenditure of public funds and manpower. Although policy reasons for transferring this action to Duval County do not exist, there are policy reasons for this action being tried in Clay County. The policy reasons include (1) absent JEA s home venue privilege, CCUA s choice of venue in Clay County would be proper, (2) CCUA is a governmental body with its own home venue privilege - it should not be penalized for having to institute this action to protect its territorial rights, (3) at issue is the right to provide water and wastewater service to residents and businesses of Clay County, (4) Duval and Clay County are adjacent counties within the same judicial circuit, and (5) consistent with CCUA s home venue privilege, it is more appropriate for a court in Clay County to decide the extent of CCUA s authority under Special Act 94-491. 13 The policy reasons set forth in Smith v. Williams, 35 So. 2d 844 (Fla. 1948), which is the case cited by the district court, were promotion of orderly, efficient and economical government, defending lawsuits with a minimum expenditure of effort and public funds, and preventing conflicting judicial rulings in different jurisdictions. 15

Conclusion This case has nothing to do with Duval County. It has everything to do with Clay County. CCUA, a governmental body with its principal headquarters in Clay County, Florida, has sued JEA, a governmental body with its principal headquarters in an adjacent county, for declaratory and injunctive relief. Each party has a home venue privilege. The basis for seeking declaratory and injunctive relief is JEA s threatened action in Clay County. There are no policy reasons for this case being tried in Duval County; however, several policy reasons support venue in Clay County. Furthermore, considerations of justice, fairness, convenience and the interests of all parties, dictate that this case be tried in Clay County. This Court should (i) reverse the district court and affirm the trial court s ruling denying JEA s Motion to Dismiss for Improper Venue, (ii) answer the certified question in the affirmative and, because no policy reasons for the home venue privilege exist, hold that this case should be tried in Clay County, or (iii) answer the certified question in the affirmative and remand to the circuit court with instructions to conduct further proceedings not inconsistent with this Court s opinion. 16

Certificate of Service I HEREBY CERTIFY that a true and correct copy of the foregoing has been forwarded via U.S. Mail to Anthony B. Zebouni, Esq. and Michael Wedner, Esq. at 117 West Duval Street, Ste. 480, Jacksonville, Florida 32202; J. Stephen Menton, Esq. and Kenneth A. Hoffman, Esq. at 215 South Monroe Street, Ste. 420, Tallahassee, Florida 32301, and John K. Aurell, John R. Beranek and Martin B. Sipple, at 227 South Calhoun Street, Tallahassee, Florida 32302, Counsel for Respondent, JEA, this day of February, 2002. Certification of Font Size The undersigned attorney certifies that the font used in this Answer Brief is Courier New 12-point, which is in compliance with the font requirements of Fla. R. App. P. 9.210(a). ROSE, SUNDSTROM & BENTLEY, LLP Martin S. Friedman, Esq Fl. Bar No. 199060 Daren L. Shippy, Esq. Fl. Bar No. 508810 2548 Blairstone Pines Drive Tallahassee, FL 32301 (850) 877-6555 Special Counsel for Petitioner Grady H. Williams, Jr., Esq. Fl. Bar No. 887950 1279 Kingsley Ave., Ste. 117 Orange Park, FL 32073 (904)264-0441 General Counsel for Petitioner 17

Clay County Utility Authority Initial Brief 18