Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT S.S., individually and as parent and natural guardian of H.H., a minor, Appellant, v. THE SCHOOL BOARD OF SARASOTA COUNTY, FLORIDA, Appellee. No. 2D21-2325 March 17, 2023 Appeal from the Circuit Court for Sarasota County; Stephen M. Walker, Judge. Tracy Raffles Gunn of Gunn Appellate Practice, P.A., Tampa, for Appellant. Duane A. Daiker and Daniel J. DeLeo of Shumaker, Loop & Kendrick, LLP, Sarasota, for Appellee. LUCAS, Judge. S.S., on her own behalf and on behalf of her minor child, H.H., appeals a final summary judgment entered in favor of the School Board of Sarasota County (School Board). She raises three issues on appeal. We affirm the summary judgment in all respects and write to address S.S.'s first argument concerning the applicable statute of limitations. I. In 2016, S.S. filed a lawsuit against the School Board. She alleged that during the 2010-11 school year, a School Board employee sexually abused her child, H.H., at an aftercare program. S.S.'s complaint asserted claims of negligence, negligent hiring, negligent retention, negligent supervision, and loss of filial consortium against the School Board. It is undisputed that S.S. first became aware of H.H.'s abuse on June 6, 2013, about two years after the last alleged abusive act. A little more than two years later, on June 10, 2015, S.S. served her written notice of claim pursuant to section 768.28(6), Florida Statutes (2015), on the School Board. Her lawsuit, however, was not filed until March 2016, which, S.S. acknowledges, was more than four years after the last alleged act of abuse. The School Board moved for summary judgment, arguing that under section 768.28(14), Florida Statutes (2016), S.S.'s lawsuit was barred by the four-year statute of limitations governing actions against sovereign immune defendants. S.S. countered that, although the School Board is generally protected by sovereign immunity for tort actions, her claims are more properly characterized as those related to a sexual battery offense against a minor; thus, there is no time limit to file them under section 95.11(9), Florida Statutes (2016). In the alternative, she maintained that any limitation period should have been tolled or deemed not to have accrued until H.H.'s guardian, S.S., first learned of the abuse. 2 The circuit court rejected S.S.'s arguments, applied a four-year limitation period, and entered final judgment in favor of the School Board on its statute of limitations defense. S.S. has timely appealed that judgment. II. This is an appeal of a summary judgment, and so our review is de novo. Davis v. Verandah at Lake Grady Homeowners Ass'n, 48 Fla. L. Weekly D142 (Fla. 2d DCA Jan. 13, 2023) (citing Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000)). The substantive issue of which statute of limitations applies to a claim is one that is subject to de novo review. D.H. v. Adept Cmty. Servs., Inc., 271 So. 3d 870, 877 (Fla. 2018) ("The application of section 95.051(1)(h) to this case is a question of statutory interpretation, which we review de novo." (citing Borden v. E.-Eur. Ins., 921 So. 2d 587, 591 (Fla. 2006))); see also Green v. Cottrell, 204 So. 3d 22, 26 (Fla. 2016) ("Questions of statutory interpretation are matters of law that are reviewed de novo."). Summary judgment is appropriate when "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fla. R. Civ. P. 1.510(a). III. A. The issue we address can be distilled down to a seemingly simple question: when a plaintiff sues a government entity because one of its agents is alleged to have sexually abused a minor child, which limitation period applies, section 95.11(9) or section 768.28(14)? A comparison of the pertinent provisions of the two statutes will make the point of dispute apparent. 3 Section 95.11 lists various time limitations for filing many kinds of civil claims. See § 95.11 ("Actions other than for recovery of real property shall be commenced as follows . . . ."); see also § 95.011 ("A civil action or proceeding . . . shall be barred unless begun within the time prescribed in this chapter or, if a different time is prescribed elsewhere in these statutes, within the time prescribed elsewhere."). S.S. argues that section 95.11(9) should apply to her lawsuit. That section provides: Sexual battery offenses on victims under age 16.—An action related to an act constituting a violation of s. 794.011 involving a victim who was under the age of 16 at the time of the act may be commenced at any time. This subsection applies to any such action other than one which would have been time barred on or before July 1, 2010. The School Board, however, is a sovereign immune governmental entity.1 A separate statute of limitations applies to sovereign immune entities, which is found in section 768.28: (1) In accordance with s. 13, Art. X of the State Constitution, the state, for itself and for its agencies or subdivisions, hereby waives sovereign immunity for liability for torts, but only to 1 The state and its agencies or subdivisions are generally immune from tort claims under the common law doctrine of sovereign immunity, but the legislature has enacted a limited waiver of that immunity in section 768.28. See § 768.28(1) ("In accordance with s. 13, Art. X of the State Constitution, the state, for itself and for its agencies or subdivisions, hereby waives sovereign immunity for liability for torts, but only to the extent specified in this act."); Franco v. Miami-Dade County, 947 So. 2d 512, 515 (Fla. 3d DCA 2006) ("Pursuant to section 768.28, Florida Statutes, the State of Florida has waived sovereign immunity from liability in tort actions 'for any act for which a private person under similar circumstances would be liable.' " (quoting Pollock v. Fla. Dep't of Highway Patrol, 882 So. 2d 928, 932 (Fla. 2004))). S.S. does not dispute that the School Board falls within the purview of governmental entities generally entitled to sovereign immunity (and, indeed, she had served the statutory presuit notice of claim required when suing a sovereign immune entity). 4 the extent specified in this act. Actions at law against the state or any of its agencies or subdivisions to recover damages in tort for money damages against the state or its agencies or subdivisions for injury or loss of property, personal injury, or death caused by the negligent or wrongful act or omission of any employee of the agency or subdivision while acting within the scope of the employee's office or employment under circumstances in which the state or such agency or subdivision, if a private person, would be liable to the claimant, in accordance with the general laws of this state, may be prosecuted subject to the limitations specified in this act. . . . .... (14) Every claim against the state or one of its agencies or subdivisions for damages for a negligent or wrongful act or omission pursuant to this section shall be forever barred unless the civil action is commenced by filing a complaint in the court of appropriate jurisdiction within 4 years after such claim accrues; except that an action for contribution must be commenced within the limitations provided in s. 768.31(4), and an action for damages arising from medical malpractice or wrongful death must be commenced within the limitations for such actions in s. 95.11(4). S.S. argues that because her civil claim against the School Board "relates to" the sexual battery one of its employees allegedly inflicted upon H.H.,2 S.S. could bring her lawsuit at any time under section 2 For purposes of this opinion, we will assume without deciding that S.S.'s allegations fall within "acts constituting a violation of s. 794.011" for purposes of section 95.11(9). The School Board disputes that characterization, and the circuit court made no finding either way. Instead, the court's summary judgment focused almost entirely on S.S.'s second and third issues on appeal; that is, when the plaintiff's causes of action accrued, whether they could be tolled, and whether the Florida Supreme Court's decision in R.R. v. New Life Community Church of CMA, Inc., 303 So. 3d 916 (Fla. 2020), effectively deprives her of her constitutional right of access to courts. We find no error in the circuit court's analysis of those arguments and affirm those aspects of its ruling 5 95.11(9). The School Board responds that "[t]he essence of S.S.'s claim is not a sexual abuse claim against an offender, it is a negligence claim against an employer with sovereign immunity." Hence, according to the School Board, section 768.28(14)'s four-year limitation applies. B. Because we are construing statutes, we must focus on the pertinent text. Hatten v. State, 203 So. 3d 142, 144 (Fla. 2016) ("The court must begin with the 'actual language used in the statute . . . because legislative intent is determined primarily from the statute's text.' " (quoting Mendenhall v. State, 48 So. 3d 740, 747-48 (Fla. 2010))). This directive applies perforce to the case at bar because it is the accordingly. See generally R.R., 303 So. 3d at 923 (Fla. 2020) ("To give proper effect to statutes of limitations, courts must also faithfully apply the accrual and tolling rules prescribed by the [l]egislature. . . . When a 'statute purports to provide a comprehensive treatment of the issue it addresses, judicial lawmaking is implicitly excluded.' " (quoting Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 96 (2012))); see also Chase Sec. Corp. v. Donaldson, 325 U.S. 304, 314 (1945) ("[Statutes of limitations] represent a public policy about the privilege to litigate. Their shelter has never been regarded as what now is called a 'fundamental' right or what used to be called a 'natural' right of the individual."); cf. Palm Beach Cnty. Fire Rescue v. Wilkes, 309 So. 3d 687, 690 (Fla. 1st DCA 2020) ("Although its effect may be to eliminate a cause of action before it accrues, a statute of repose is not unconstitutional as a denial of equal protection, due process, or access to courts."). Neither party contends that the lack of a definitive pronouncement from the circuit court as to which statute of limitations it was applying thwarts our ability to review the final summary judgment and address the first issue on appeal. Given the arguments that were raised below and in this appeal, it appears the circuit court, having rejected S.S.'s accrual, tolling, and constitutional arguments, applied section 768.28(14)'s four-year limitation when it found in favor of the School Board. Neither party has suggested otherwise, but have, in fact, presented their respective arguments under that assumption. 6 legislature, not the courts, which has the prerogative to ascribe limitations to minors' claims. See R.R. v. New Life Cmty. Church of CMA, Inc., 303 So. 3d 916, 924 (Fla. 2020) (disapproving an interpretation that "directly conflicts with the [l]egislature's express policy preference on how best to address the issue of minors and statutes of limitations"). The issue before us, though, is not so much how to interpret a given piece of statutory text, but which statutory text should apply. In this case, that becomes a question of framing. Depending on how one frames S.S.'s lawsuit against the School Board—whether as one "related to" an alleged sexual battery of S.S.'s child or as respondeat superior claims against a sovereign immune defendant—either section 95.11(9) or section 768.28(14) could govern S.S.'s claim.3 In truth, both aspects— the alleged sexual abuse and the vicarious liability of the sovereign immune defendant—seem equally important to the maintenance of S.S.'s claims. So one could deem S.S.'s lawsuit as both an action related to the alleged sexual battery of a minor child and a negligence action against a sovereign immune defendant. Which of two statutes of limitations should apply when both are implicated? Fortunately, we have two sources to guide us to the proper choice in this case. 1. First, we have another statute, section 95.011, which clarifies how section 95.11's general applicability interacts with other statutes of 3 The rule of construction that when two statutes of limitations are in conflict the more specific provision controls, see Sheils v. Jack Eckerd Corp., 560 So. 2d 361, 363 (Fla. 2d DCA 1990); Suntrust Banks of Fla., Inc. v. Don Wood, Inc., 693 So. 2d 99, 101 (Fla. 5th DCA 1997), doesn't help us much because deciding which is the more specific statute depends entirely on how you choose to view this controversy. 7 limitations. Section 95.011 states, in pertinent part: "A civil action or proceeding . . . shall be barred unless begun within the time prescribed in this chapter or, if a different time is prescribed elsewhere in these statutes, within the time prescribed elsewhere." (Emphasis added.) Applying this section's text, it would appear that "a different time" period for sovereign immune defendants, such as the School Board, has indeed been "prescribed elsewhere" (in section 768.28(14)) such that section 768.28(14) should control. Moreover, the legislature has, in the past, amended section 768.28(14) to provide something other than the four-year limitation period for sovereign immune defendants. The latter part of section 768.28(14),4 states, "[A]n action [against a sovereign immune defendant] for damages arising from medical malpractice or wrongful death must be commenced within the limitations for such actions in s. 95.11(4)." In enacting that amendment, the legislature apparently recognized the primacy of section 768.28(14) for claims involving sovereign immune defendants; so when it wished to prescribe a different limitation for medical malpractice claims against sovereign immune defendants, it changed subsection (14) to include section 95.11(4)'s shorter time period. 4 Prior to 1988, the latter part of section 768.28(12), which eventually became section 768.28(14), read, "except that with respect to any action for contribution, the action must be commenced within the limitations provided in s. 768.31(4)." In 1988, that sentence was amended to read, "except that an action for contribution must be commenced within the limitations period provided in s. 768.31(4) and an action for damages arising from medical malpractice must be commenced within the limitations for such an action in s. 95.11(4)." See ch. 88-173, § 2, Laws of Fla. Subsequently, in 2011, this language, which was now found at section 768.28(14), was amended again to read, "and an action for damages arising from medical malpractice or wrongful death must be commenced within the limitations for such actions in s. 95.11(4)." See ch. 2011-113, § 1, Laws of Fla. 8 The fact that section 95.11(9) has not been incorporated into section 768.28(14), while another subsection of section 95.11 has, provides textual evidence that the legislature intends a four-year limitation period to apply to claims such as S.S.'s. Cf. Alachua County v. Watson, 333 So. 3d 162, 169 (Fla 2022) (observing that, when interpreting statutes, judges must "exhaust 'all the textual and structural clues' " (quoting Niz- Chavez v. Garland, 141 S. Ct. 1474, 1480 (2021))). 2. Our second source of guidance is in case law that has addressed the interplay between sections 95.11 and 768.28. In Menendez v. Public Health Trust of Dade County, 566 So. 2d 279, 280 (Fla. 3d DCA 1990), a mother and father filed a medical malpractice action against a public hospital, a doctor, and the University of Miami after they learned that their baby may have suffered congenital brain damage due to negligent obstetrical care. The circuit court determined that all the claims were governed—and barred—by section 95.11(4)(b)'s two-year statute of repose period5 and entered summary judgment in favor of all the defendants. Id. at 280-81. On appeal, the Third District affirmed the judgment in favor of the individual doctor and the University of Miami but held that the circuit court applied the wrong statute of limitations to the public hospital: 5 § 95.11(4)(b) ("An action for medical malpractice shall be commenced within 2 years from the time the incident giving rise to the action occurred or within 2 years from the time the incident is discovered, or should have been discovered with the exercise of due diligence; however, in no event shall the action be commenced later than 4 years from the date of the incident or occurrence out of which the cause of action accrued, except that this 4-year period shall not bar an action brought on behalf of a minor on or before the child's eighth birthday."). 9 As to Jackson, however, we hold that the trial court erred in applying the provisions of section 95.11(4)(b). Section 768.28(11), Florida Statutes (Supp. 1980), which provides a four-year limitation without a period of repose for the filing of a negligence action against a state agency, is the appropriate statute of limitations in negligence actions against Jackson, see Jaar [v. University of Miami, 474 So. 2d 239 (Fla. 3d DCA 1985)]; Whitney v. Marion County Hosp. Dist., 416 So. 2d 500 (Fla. 5th DCA 1982), a state agency. Id. at 282. The Third District's decision came before the Florida Supreme Court on an asserted conflict with the supreme court's prior opinion in Carr v. Broward County, 541 So. 2d 92 (Fla. 1989). See Pub. Health Tr. of Dade Cnty. v. Menendez, 584 So. 2d 567 (Fla. 1991). The Florida Supreme Court approved of the Third District's decision, applying section 95.011 in the same way we have read it today: [W]e find that the legislative statement contained in section 95.011, Florida Statutes (1979), is dispositive of this case. That statute clearly provides that the periods of time provided in chapter 95 do not apply if a different period is provided elsewhere in the statutes. Section 768.28(11), Florida Statutes (Supp. 1980), provides its own period of time. Thus, section 768.28(11) is the statute applicable to this case. We are aware of PHT's argument that section 768.28(11) contains no statute of repose and that the repose period contained in section 95.11 thus should apply. However, we find nothing in section 95.011 that makes a distinction between "statutes of limitation" and "statutes of repose." The statute does not even use these two terms, but rather refers only to the "time prescribed" to bring a suit. Moreover, the language of section 95.011 is plain: If a different statute prescribes a different time, then the periods of time in chapter 95 have no applicability. The fact that section 768.28(11) provides a statute of limitations but not a statute of repose thus means that no repose period was intended. 10 Id. at 569. The Fourth District applied Menendez in Doe v. Sinrod, 90 So. 3d 852 (Fla. 4th DCA 2012), a case that bears striking similarity to the case at bar. In Doe, a student claimed that a teacher sexually assaulted her while she was in second grade; seven years later, her parents filed a lawsuit against the teacher's employer, the Palm Beach County School Board. Id. at 853. The plaintiff argued that section 95.11(7) of the Florida Statutes governed her claims since the basis of the lawsuit was an intentional tort of sexual abuse of a minor.6 Id. at 853. Affirming the dismissal with prejudice of the plaintiff's claims, the Fourth District held: Public Health Trust of Dade County v. Menendez, 584 So. 2d 567 (Fla. 1991), further explains that when "a governmental entity subject to the waiver of sovereign 6 Section 95.11(7) provides: An action founded on alleged abuse . . . may be commenced at any time within 7 years after the age of majority, or within 4 years after the injured person leaves the dependency of the abuser, or within 4 years from the time of discovery by the injured party of both the injury and the causal relationship between the injury and the abuse, whichever occurs later. S.S. has advanced an alternative argument that section 95.11(7) could also apply to her claim. That argument, however, was not presented below, and so the issue was not preserved for our review. See Lincare Holdings Inc. v. Ford, 307 So. 3d 905, 912 (Fla. 2d DCA 2020) ("[T]o be preserved for appeal, 'the specific legal ground upon which a claim is based must be raised at trial and a claim different than that will not be heard on appeal.' " (alteration in original) (quoting Aills v. Boemi, 29 So. 3d 1105, 1109 (Fla. 2010))); see also Pulte v. New Common Sch. Found., 334 So. 3d 677, 680 (Fla. 2d DCA) ("[T]he failure to preserve an argument for appeal generally precludes our consideration of that argument on appeal."), review dismissed, SC22-415, 2022 WL 2663058 (Fla. July 11, 2022). Were we to address this claim, we would hold that Menendez and Doe control the disposition of this issue, irrespective of which subsection of section 95.11 S.S. invokes. 11 immunity," is involved, chapter 768, rather than chapter 95, governs for purposes of that entity. Id. at 569. . . . [T]he School Board is a governmental entity, subject to the waiver of sovereign immunity. As such, the time limitations in section 768.28 are applicable, rather than those set forth under section 95.11. .... Chapter 95 expressly states that its time limitations are secondary to other times prescribed in the Florida Statutes. Therefore, the time restraints set forth in chapter 768 take precedence. . . . We note that if the legislature intended to extend chapters 95 and 768 as to both individuals and governmental entities under the theory of respondeat superior, it should have expressly provided as such. Instead, chapter 95 expressly bars civil actions against governmental entities which are not brought within the time period prescribed in the Florida Statutes, while chapter 768 expressly requires negligence claims against the state or one of its agencies to be commenced within four years of the time the action accrues. The interplay between the two statutes evidences a precedential effect of the time limitations in chapter 768, as noted by the language in section 95.011, which provides that civil actions are "barred unless begun within the time prescribed in this chapter or, if a different time is prescribed elsewhere in these statutes, within the time prescribed elsewhere." § 95.011, Fla. Stat. Id. at 855-56. Like the Fourth District, we are bound to follow the Florida Supreme Court's analysis in Menendez. Section 95.11 does not govern a tort claim against a sovereign immune defendant for the alleged sexual abuse one of its agents commits on a minor child; section 768.28(14) does. See § 95.011; Menendez, 584 So. 2d at 569; Doe, 90 So. 3d at 855- 56; see also Beard v. Hambrick, 396 So. 2d 708, 712 (Fla. 1981) ("We 12 believe that the legislature intended that there be one limitations period for all actions brought under section 768.28."). C. There is, however, a ripple. As S.S. points out, the Florida Supreme Court's decision in Green v. Cottrell, 204 So. 3d 22 (Fla. 2016), seems to be at odds with its earlier approach in Menendez. In Green, a prisoner filed a complaint against employees of a county jail when he was attacked and injured by two inmates in his dormitory. Id. at 24. The complaint asserted claims of negligence and intentional infliction of emotional distress against a sovereign immune defendant. Id. at 25. The circuit court dismissed the prisoner's complaint as time-barred under section 95.11(5)(g)'s one-year time limit for "an action brought by or on behalf of a prisoner . . . relating to the conditions of the prisoner's confinement." Id. On appeal, the First District affirmed the circuit court's dismissal and determined that section 95.11(5)(g), not section 768.28(14), governed the prisoner's claim because section 95.11(5)(g) was the more recently enacted statute. Id. at 26. In so holding, the First District disagreed with a case out of the Fifth District, Calhoun v. Nienhuis, 110 So. 3d 24 (Fla. 5th DCA 2013). Id. Calhoun had interpreted section 95.011, Menendez, and the medical malpractice and contribution amendment to section 768.28(14) to mean that section 768.28(14), not section 95.11(5)(g), applied to a prisoner's negligence claim against a sheriff's jail employees. Calhoun, 110 So. 3d at 26. In resolving the conflict, the Florida Supreme Court agreed that section 768.28(14) applied—but not for the reasons set forth in Calhoun. Green, 204 So. 3d at 29. After reviewing the provisions of section 95.11(5)(g), its preamble, and the staff analysis that accompanied its 13 passage, Green held that because the prisoner's lawsuit was not one that "related to his confinement," section 95.11(5)(g) could not apply. Id. at 28. The court in Green then went on to remark that Calhoun should have turned on the fact that the plaintiff in that case was a pretrial detainee and not a prisoner (and for that reason, section 95.11(5)(g) couldn't have applied). Id. at 29. The Green court expressly disapproved of Calhoun's analysis, albeit "without further discussion." Id. S.S. construes Green's undiscussed rejection of Calhoun's analysis (which, again, largely turned on Menendez and section 95.011) as an implicit rejection of Menendez itself. She concedes that Green never mentions Menendez, as such, but given how the analysis in Calhoun was constructed—and how Green unequivocally rejected that analysis—Green has necessarily reopened the possibility that section 95.11 could trump section 768.28 in a case against a sovereign immune defendant, depending on the nature and allegations of the tort claims. While S.S.'s understanding of Green, read in isolation, is perhaps not unreasonable, we are constrained to continue applying Menendez, as that case remains binding, controlling authority that addresses the issue before us. Cf. F.B. v. State, 852 So. 2d 226, 228-29 (Fla. 2003) ("[T]his Court does not intentionally overrule itself sub silentio." (quoting Puryear v. State, 810 So. 2d 901, 905 (Fla. 2002))); Willis v. Gami Golden Glades, LLC, 967 So. 2d 846, 875 (Fla. 2007) (Cantero, J., dissenting) ("We do not recede from our cases sub silentio."). Menendez held, "If a different statute prescribes a different time, then the periods of time in chapter 95 have no applicability." 584 So. 2d at 569 (emphasis added). And the holding in Menendez elevated section 768.28 over section 95.11 in tort cases involving sovereign immune defendants. Thus, to the extent S.S.'s claims fell within the language of section 95.11(9), Menendez compels us 14 to apply section 768.28(14) to S.S.'s lawsuit against a sovereign immune school board. IV. We conclude by acknowledging the troubling result of our affirmance. These are hard cases. If we had the power to enact public policy, we would hold that a minor child's right to seek civil redress against an allegedly negligent employer for its agent's sexual abuse would not be subject to a curtailed time limitation simply because the employer happens to be the government. We don't have that power; the legislature does. Accord R.R., 303 So. 3d at 923 (noting that "[t]o give proper effect to statutes of limitations, courts must also faithfully apply the accrual and tolling rules prescribed by the [l]egislature" and explaining that "[w]hen a 'statute purports to provide a comprehensive treatment of the issue it addresses, judicial lawmaking is implicitly excluded' " (quoting Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 96 (2012))); State v. Burris, 875 So. 2d 408, 413-14 (Fla. 2004) ("Attractive as this interpretation may be from a policy standpoint, we must resist the temptation to so expand the statute. To construe the statute in a way that would extend or modify its express terms would be an inappropriate abrogation of legislative power." (citing Holly v. Auld, 450 So. 2d 217, 219 (Fla. 1984))). If the legislature sees fit to remove this disparity between governmental and private defendants for claims such as those S.S. raises, it can amend section 768.28(14)— as, indeed, it has done in the past for other claims. The circuit court's summary judgment reached the correct result. Consistent with section 95.011 and Menendez, we hold that section 768.28(14)'s four-year limitations period applied to S.S.'s claims against the School Board. Because S.S.'s lawsuit was not filed within that time, 15 her claims were barred as a matter of law. We affirm the judgment below accordingly. Affirmed. KELLY and BLACK, JJ., Concur. Opinion subject to revision prior to official publication. 16