Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D2025-2106 _____________________________ FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES, Appellant, v. JOHN L. GAINEY, as Personal Representative of the Estate of Nazariah Brown; WORLD WIDE WEBB, LLC; RAPHEAL WEBB, individually; LATORIA SINGLETON, individually; GABRIEL WOODS, individually; CRANDALL MEDICAL CONSULTING, LLC; and BRAANDON DAVIS, individually, Appellees. _____________________________ On appeal from the Circuit Court for Alachua County. Gloria R. Walker, Judge. October 7, 2026 BILBREY, J. The Florida Department of Children and Families appeals the nonfinal order denying its motion for summary judgment. The Department asserted that it was entitled to judgment as a matter of law since sovereign immunity was not waived for the allegations of negligence in the third amended complaint. Because the trial court applied the incorrect law to deny summary judgment, the order on appeal is reversed with instructions that summary final judgment be entered for the Department. 1 “Because of the separation of powers principles that animate the doctrine, and because it provides both immunity from suit and immunity from liability, the Florida Supreme Court instructs that ‘entitlement to sovereign immunity should be established as early in the litigation as possible.’” Fla. Virtual Sch. v. Calfee, 425 So. 3d 78, 82 (Fla. 6th DCA 2025) (quoting Fla. Highway Patrol v. Jackson, 288 So. 3d 1179, 1185 (Fla. 2020)). An order denying a motion for summary judgment based on sovereign immunity is reviewed de novo. Id.; see also Nocco v. Wilcox, 414 So. 3d 302, 305 (Fla. 2d DCA 2025). “[C]ertain ‘discretionary’ governmental functions remain immune from tort liability. . . . Identifying these functions is done primarily by distinguishing, through a case-by- case analysis, the ‘planning’ and ‘operational’ levels of decision- making by governmental agencies.” Dep’t of Health & Rehab. Servs. v. B.J.M., 656 So. 2d 906, 911 (Fla. 1995) (footnotes omitted) (quoting Com. Carrier Corp. v. Indian River Cnty., 371 So. 2d 1010, 1022 (Fla. 1979)). Nazariah Brown was a young adult man with complex medical needs. He lived with his mother and other family members until August 2022 when the family lost the lease to their home. The Department became involved with Mr. Brown in May 2022 at his mother’s request since he needed services and his mother knew their housing situation was precarious. Over the several months between May and August 2022, efforts of the mother and the Department to locate suitable housing were unsuccessful. The impending loss of the family’s leased residence caused an emergency and, to keep Mr. Brown from becoming homeless, Department personnel placed Mr. Brown in the only facility they could find that agreed to accept him. A few days after 1 The nonfinal order on appeal is reviewable under rule 9.130(a)(3)(F)(iii), Florida Rules of Civil Procedure, because it denies a motion that “asserts entitlement to sovereign immunity.” 2 this placement, the Agency for Persons with Disabilities assumed responsibility for Mr. Brown’s services. While Mr. Brown remained at the facility under the Agency’s placement, the Department received two central abuse hotline reports. See § 415.103, Fla. Stat. (2022) (establishing central abuse hotline for reporting abuse, neglect, or exploitation of a vulnerable adult). The reports were investigated by Department personnel in the Department’s Adult Protective Services (APS) office, and both cases were eventually closed as “unsubstantiated.” In his four-count third amended complaint, John L. Gainey, as personal representative of the estate of Mr. Brown, alleged that the Department was liable for monetary damages caused by the negligence of its employees who acted within the scope of their employment. 2 In count I, Gainey alleged three bases for the Department’s negligence. His first allegation was negligence by failing to train and supervise its APS unit staff, resulting in the improper protective supervision of Mr. Brown. See § 415.1051(4)(a), Fla. Stat. (allowing the Department to provide protective services with “consent from the caregiver or guardian”). His second allegation was that the Department was liable for failing to supervise APS staff who negligently placed Mr. Brown in 2 The initial complaint was brought by Gainey as Mr. Brown’s guardian. During the litigation, Mr. Brown died and Gainey was substituted as the personal representative of his estate. Gainey alleged both a survival action to the extent that the negligence did not cause Mr. Brown’s death and a wrongful death if it did. Counts II, III, and IV of the third amended complaint were dismissed with prejudice after the parties stipulated that the three named employees were immune from individual liability per section 768.28(9), Florida Statutes. Whether sovereign immunity applies to the allegations in count I against the Department is the only issue before us. Because we only have jurisdiction in this nonfinal appeal to address the sovereign immunity issue, we do not consider the Department’s argument before the trial court that the third amended complaint improperly combined multiple causes of action into one count. See Smith v. Lee, 51 Fla. L. Weekly D1009, D1010, 2026 WL 1407947, *2 (Fla. 1st DCA May 20, 2026). 3 a facility that did not meet his complex medical needs. Gainey’s third allegation in count I was negligent investigation and closure of reports of injury to Mr. Brown. On appeal, Gainey concedes that his negligent training and negligent supervision claims against the Department are barred by sovereign immunity. We accept this concession. See Nocco, 414 So. 3d at 305 (citations omitted) (holding that sovereign immunity bars negligent training claims that are based on what subjects to train and how to train those subjects since those issues entail the exercise of discretion); Cook ex rel. Est. of Tessier v. Sheriff of Monroe Cnty., 402 F.3d 1092, 1117–19 (11th Cir. 2005) (holding that claims targeting the organizational structure and regulatory oversight of a government agency inappropriately require the judiciary to review policy decisions constitutionally reserved for the political branches). Thus, Gainey has abandoned the negligent training and supervision claims against the Department for purposes of further proceedings. The remaining allegation against the Department in count I of the third amended complaint was a claim of negligence by the Department due to APS staff members’ investigation and premature closure of the two hotline reports received in September 2022 and October 2022. These allegations claimed violation of the Department’s statutory and common law duties “to properly investigate and to take appropriate action to protect” Mr. Brown. Specifically, the third amended complaint alleged, “At all times material, Defendant DCF also had the common law and statutory obligations to respond to and investigate calls of abuse or neglect of vulnerable adults, and to make sure that it and its personnel took action to remove vulnerable adults from situations where their needs and rights were not being provided for.” As explained below, these allegations are also subject to sovereign immunity. Following the summary judgment hearing held in July 2025, the trial court found “there are too many disputed issues of fact involving the issue of negligence” to enter summary judgment. The court listed many disputed facts about the Department’s provision of services to Mr. Brown, beginning in May 2022 and culminating in his placement on an “emergency” basis in August 2022. The court also listed the disputed issues of fact about the 4 two hotline calls received in September and October 2022, and APS staff members’ handling and ultimate closure of the cases. The trial court concluded that “based on the record evidence, sovereign immunity does not apply.” In its oral pronouncement of its ruling, the court stated that “given how many facts are in dispute, it’s unclear . . . whether or not sovereign immunity would apply because it’s unclear . . . whether or not, based on the facts as alleged, DCF did anything wrong.” The court made no ruling on whether the Department’s actions as alleged in the third amended complaint were planning or operational functions. Additionally, the court made no findings that the Department’s sovereign immunity was waived under section 768.28, Florida Statues, by any provision in chapter 415, Florida Statutes, or any other legislative enactment. The trial court misapplied the law when it denied summary judgment by treating sovereign immunity as an issue of fact. Sovereign immunity is a threshold legal question for the court, not a fact question for the jury. Fla. Dep’t of Corr. v. Campbell, 417 So. 3d 479 (Fla. 1st DCA 2025) (reversing denial of motion to dismiss complaint; classification and assignment of prisoners within prison system are discretionary, planning-level decisions to which waiver of sovereign immunity does not apply). “Sovereign immunity is the rule, not the exception, and a waiver of sovereign immunity must be unequivocal and will not be found by inference.” Univ. of Fla. Bd. of Trs. v. Browning, 387 So. 3d 371, 376 (Fla. 1st DCA 2024). Immunity, and the limited waiver of sovereign immunity under section 768.28, Florida Statutes, are threshold bars to suit to be determined independently from “outstanding disputes about the existence of a duty of care.” Fla. Highway Patrol v. Jackson, 288 So. 3d 1179, 1185 (Fla. 2020). It is the nature of the conduct challenged, not proof of the facts alleged, that determines whether immunity is waived. Trianon Park Condo. Ass’n, Inc. v. City of Hialeah, 468 So. 2d 912, 918 (Fla. 1985). “The immunity of the State of Florida and its agencies from liability for claims arising under Florida law or common law is absolute absent a clear, specific, and unequivocal waiver by legislative enactment.” Dep’t Highway Safety & Motor Vehicles 5 v. Hightower, 306 So. 3d 1193, 1199–1200 (Fla. 1st DCA 2020) (quoting State, Dep’t of Elder Affs. v. Caldwell, 199 So. 3d 1107, 1109 (Fla. 1st DCA 2016)). As we held in Caldwell, sovereign immunity is not waived under section 768.28 for “statutory claims.” 199 So. 3d at 1110. To the extent that the claims of negligence against the Department depends on its allegations of failure to properly handle the hotline calls under chapter 415, Florida Statutes, a waiver by section 768.28 cannot be assumed or inferred. See Trianon Park Condo. Ass’n, 468 So. 2d at 919–920 (holding that enforcement of laws and conducting investigations of alleged violations of the law are discretionary functions). As for the common law allegations involving negligent investigation by the Department, sovereign immunity also applies to those allegations. “A plaintiff suing a governmental entity in tort must, therefore, allege and prove that the governmental entity owed a duty of care to the plaintiff individually rather than to the public in general.” Miami-Dade Cnty. v. Fente, 949 So. 2d 1101, 1103 (Fla. 3d DCA 2007). “[I]n the absence of a special relationship between the individual and the governmental entity, a common law duty is not owed to the victim of a criminal offense, even though the offense might have been prevented through reasonable law enforcement.” Sams v. Oelrich, 717 So. 2d 1044, 1047 (Fla. 1st DCA 1998). Furthermore, to the extent that the third amended complaint alleged that by selecting the placement for Mr. Brown, the Department had a special relationship with him and owed him a duty beyond that owed to the general public, such placement decisions are also subject to sovereign immunity. See Campbell, 417 So. 3d at 483 (holding that the classification and assignment of persons in the custody of the State were “discretionary, planning-level decisions”). As the Florida Supreme Court has stated: HRS [the Department’s predecessor agency] is vested with broad discretion in exercising its placement authority. For this reason, we believe the placement function constituted a “discretionary planning or 6 judgmental function” entitled to immunity even if considered as a category IV function. We also believe the same immunity accorded to placement decisions applies to the discretionary decisions made by HRS in allocating services to dependents and delinquents under the statutory scheme mandated by the legislature. This scheme provides the same broad discretion for allocating services as for placement decisions. B.J.M., 656 So. 2d at 913 (citation omitted). 3 Because the trial court applied an incorrect standard to conclude that “sovereign immunity does not apply,” the order denying the Department’s motion for summary judgment is reversed. Sovereign immunity applies to the claims against the Department and summary final judgment must be entered for the Department. REVERSED with instructions. M.K. THOMAS and LONG, JJ., concur. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Kathryn L. Ender, Ravika R. Marcadis, and Janice Lopez of Dinsmore & Shohl LLP, Miami, for Appellant. 3 A category IV function is a “governmental function or activity” involving the provision of “professional, educational, and general services for the health and welfare of the citizens.” B.J.M., 656 So. 2d at 911 (citing Trianon Park Condo. Ass’n, 468 So. 2d at 919–21). 7 David A. Paul, Christine V. Zharvo, and Debora S. Antisdel of Paul Trial Group, Winter Park; Alexis S. Gay and Valentina V. Villalobos of Elite Child Advocacy, PLLC, Tampa; Karen Gievers, Tallahassee, for Appellee John L. Gainey. 8