Montero ex rel. W.P.M. v. Duval County School Board

On behalf of their son W.P.M., Daniel and Cheryl Montero appeal the judgment entered after orders dismissing complaints they filed against the Duval County School Board (Board) in the Fourth Judicial Circuit. We affirm.

We have jurisdiction even though, at least as to count one, dismissal was solely for failure to exhaust administrative remedies and explicitly “without prejudice.” See Hiñóte v. Ford Motor Co., 958 So.2d 1009, 1010-11 (Fla. 1st DCA 2007) (“The order of dismissal is clearly final when, for instance, the claim could only be pursued by filing a new complaint, or where there was a failure to serve the defendant, or failure to exhaust administrative remedies, Hollingsworth v. Brown, 788 So.2d 1078 (Fla. 1st DCA 2001).” (citations omitted)); Carlton v. Wal-Mart Stores, Inc., 621 So.2d 451, 452 (Fla. 1st DCA 1998) (same); see also Gerber v. Vincent’s Men’s Hairstyling, Inc., 57 So.3d 935, 936-37 (Fla. 4th DCA 2011) (same); Valcarcel v. Chase Bank USA NA, 54 So.3d 989, 990 (Fla. 4th DCA 2010) (“An order dismissing an action without prejudice and without granting leave to amend is a final appealable order.”). But see Benton v. Fla. Dep’t of Corr., 782 So.2d 981, 981-82 (Fla. 1st DCA 2001).

For purposes of decision, we take as true all well-pleaded allegations of the complaints appellants filed in circuit court. Born deaf, W.P.M. is eligible for exceptional student education (ESE) services, which the school district proposed to furnish in accordance with an individual education plan (IEP) created by a team that consisted of teachers, district personnel, specialists, and W.P.M.’s parents, appellants here. See Fla. Admin. Code R. 6A-6.03028(1), (3). The IEP outlines services the team concluded W.P.M. needs to get a free appropriate public education (FAPE), in accordance with the requirements laid down by the Individuals with Disabilities Education Act (IDEA), codified at 20 U.S.C. § 1400 et seq. (2010).

Pursuant to section 1002.39, Florida Statutes (2010), an eligible ESE student with an IEP may receive a John M. McKay Scholarship payable from public funds to a private school the parents choose. § 1002.39(1), (2)(a)3., Fla. Stat. The school district evaluates the student’s matrix of services level, then notifies the Department of Education (Department), which informs the private school of the amount of the scholarship.1 *409§ 1002.39(5)(b)2.b.-c., Fla. Stat. The “school district may change a matrix of services only if the change is to correct a technical, typographical, or calculation error.” § 1002.89(5)(b)2.d., Fla. Stat. District personnel transferred information from W.P.M.’s IEP to a form “matrix of services” documenting the services he was to receive as an ESE student, see § 1011.62(l)(e), Fla. Stat. (2010), assigned a numerical “score,” then transmitted the score to the Department.

In their amended complaint, appellants alleged the Board understated their child’s matrix of services score in order to reduce the McKay Scholarship funds available to them. In Count I, they sought a declaration of their rights and duties under the McKay Scholarship program and matrix of services scoring process, and requested the circuit court declare2 that the Board had miscalculated the child’s matrix of services score and that they were entitled to recalculation of the matrix of services score “to more accurately reflect his IEP and particular educational needs.” In Count II, they alleged that district personnel had deliberately scored the matrix of services at less than what was appropriate; and that understating W.P.M.’s matrix of services score and misleading them about the services W.P.M. required violated the Florida Deceptive and Unfair Trade Practices Act (FDUTPA).

The Board moved to dismiss both counts. As to Count I in particular, the Board maintained the appellants had failed to “pursue, much less exhaust, administrative remedies.” The IDEA requires and Florida has fully implemented an administrative complaint process3 which includes *410the right to a hearing before an administrative law judge regarding “the identification, evaluation, or educational placement” of a child. See 20 U.S.C. § 1415(b)(6)(A); see also § 1003.57(l)(b), Fla. Stat. (2010) (“The parent of an exceptional student evaluated and placed or denied placement in a program of special education shall be notified of each such evaluation and placement or denial. Such notice shall contain a statement informing the parent that he or she is entitled to a due process hearing on the identification, evaluation, and placement, or lack thereof.”); Fla. Admin. Code R. 6A-6.03311(9) (setting forth procedures for a due process hearing). By statute, no court action is permitted until after exhaustion of these administrative remedies. See 20 U.S.C. § 1415(i)(2); § 1003.57(l)(b), Fla. Stat.; Fla. Admin. Code R. 6A-6.03311(9)(w). In the present case, W.P.M.’s parents never filed an administrative complaint objecting to the IEP they helped formulate, much less requested a due process hearing.

Separately,4 the Department is required to “[establish, a process by which individuals may notify the department of any violation by a ... school district of state laws relating to [McKay Scholarship] program participation.” § 1002.39(6)(c), Fla. Stat. Rule 6A-6.0970(8)-(9), Florida Administrative Code, sets forth the complaint process.5 If a school district has violated laws or rules related to scholarship program participation, “the Department shall take any actions allowable under law to compel school district compliance with program requirements and to ameliorate the effect of the violation on the parent, student, or private school as appropriate.” Fla. Admin. Code R. 6A-6.0970(9)(c)3.c.

After hearing argument,6 the circuit court entered an order dismissing Count I, without prejudice, for failure to exhaust administrative remedies, on grounds that “any challenge to a matrix of services score for purposes of the McKay Scholarship Program must be made pursuant to the administrative remedy provided” in Rule 6A-6.0970, prior to seeking relief in court. The trial court also found that the appellants’ challenge to the matrix of services score fell within the scope of the *411IDEA, to the extent appellants’ allegations related to the identification, evaluation or educational placement of W.P.M., and that appellants had also failed to exhaust administrative remedies available to correct any errors of that kind.

That a “school district may change a matrix of services only if the change is to correct a technical, typographical, or calculation error,” § 1002.39(5)(b)2.d., Fla. Stat., once the IEP process has come to an end, is a function of the statutory constraint 7 that “[t]he nature and intensity of the services indicated on the matrix shall be consistent with the services described in each exceptional student’s individual educational plan.” § 1011.62(l)(e)l.a., Fla. Stat. On appeal, appellants do not clearly argue that the matrix of services score fails to reflect accurately the “nature and intensity of the services” in W.P.M.’s IEP. But the appellants do argue the Board “disagreed with the professionals who worked with” their child on a daily basis and assigned a low matrix of services score that significantly reduced the amount of McKay. Scholarship funds available to them.

In any event, the circuit court correctly dismissed Count I for failure to exhaust administrative remedies. See Norman v. Ambler, 46 So.3d 178, 182 n. 5 (Fla. 1st DCA 2010) (“As a general proposition, the doctrine of exhaustion of administrative remedies precludes judicial intervention where available administrative remedies can afford the relief a litigant seeks. See Fla. Fish & Wildlife Conservation Comm’n v. Pringle, 838 So.2d 648 (Fla. 1st DCA 2003); Fla. Marine Fisheries Comm’n (Div. of Law Enforcement) v. Pringle, 736 So.2d 17, 21 (Fla. 1st DCA 1999) (that agency ‘is charged with implementing not only statutory provisions, but also ... constitutional provisions ... does not ... justify expansion of ... limited role assigned the judiciary1 by the exhaustion doctrine).”).

In Count II of the amended complaint, the appellants alleged the Board engaged in trade or commerce by “providing, offering, and/or distributing a reduced amount of McKay Scholarship money” to the private school on behalf of the appellants’ child, whom the complaint described as a consumer of educational services and scholarship money.8 The theory of Count II is that the Board’s allegedly improperly assigning a low matrix of services score (allegedly in disregard of expert opinions from W.P.M.’s teachers, therapists, and other specialists) violated section 1002.39 and Rule 6A-6.0970 and was an unfair and deceptive act that was not required, permitted or condoned by state or federal law.

The FDUTPA declares unlawful “[u]n-fair methods of competition, unconscionable acts or practices, and unfair or decep*412tive acts or practices in the conduct of any trade or commerce.” § 501.204(1), Fla. Stat. (2011). “Trade or commerce” is defined to mean “the advertising, soliciting, providing, offering, or distributing, whether by sale, rental, or otherwise, of any good or service, or any property, whether tangible or intangible, or any other article, commodity, or thing of value, wherever situated” and includes “the conduct of any trade or commerce, however denominated, including any nonprofit or not-for-profit person or activity.” § 501.203(8), Fla. Stat. (2011).. “Thing of value” is defined to include “any moneys, donation, membership, credential, certificate, prize, award, benefit, license, interest, professional opportunity, or chance of winning.” § 501.203(9), Fla. Stat.

As the circuit court ruled, however, the FDUTPA does not apply to “[a]n act or practice required or specifically permitted by federal or state law.” § 501.212(1), Fla. Stat. (2011). The Board’s completing a matrix of services score form is not engaging in “trade or commerce” within the meaning of the FDUTPA. The numerical score this essentially ministerial act yields is an administrative tool for the Department to use in allocating state funds for the education of exceptional students, and is not itself a “thing of value.” Nor is granting scholarships engaging in “trade or commerce” within the meaning of the FDUTPA. The appellants have drawn our attention to no case in which a governmental entity was deemed to be involved in “trade or commerce” in administering a public welfare grant program required by state law.

Assuming for purposes of decision only that Count II was not, like Count I, also properly dismissed for failure to exhaust administrative remedies,9 we hold the trial court correctly construed the FDUTPA in dismissing Count II. Dismissal of Count II was appropriate because the appellants did not allege facts to establish that assigning a matrix of services score was an act constituting “trade or commerce.” The FDUTPA does not apply to an “act or practice required or specifically permitted by federal or state law” § 501.212(1), Fla. Stat.; and assigning a matrix of services score is an act or practice required or specifically permitted by state law. See §§ 1002.39(5)(b)(l) & 1011.62(l)(e), Fla. Stat.

Affirmed.