Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D19-3393 _____________________________ OPERATIONS MANAGEMENT INTERNATIONAL, INC., Appellant, v. KIMBERLY JOHNSON and CITY OF LIVE OAK, a Florida municipality, Appellees. _____________________________ On appeal from the Circuit Court for Suwannee County. David W. Fina, Judge. April 21, 2020 PER CURIAM. This appeal involves competing motions for summary judgment. In Operations Management International, Inc.’s (OMI) motion for summary judgment, OMI contended that it was entitled to sovereign immunity under section 768.28, Florida Statutes (2016–2018), because it was an agent of the City of Live Oak (the City). In Ms. Johnson’s motion for summary judgment, she insisted that OMI was not entitled to sovereign immunity because it was not an agent of the City and there was no factual dispute about that issue. The trial court denied OMI’s motion for summary judgment and granted Ms. Johnson’s. OMI appealed both orders. When OMI moved for summary judgment, it argued that it was an agent of the City under two theories. First, it argued that it was clearly an agent of the City because it was performing an essential government function. Second, it argued that OMI was entitled to sovereign immunity because the City retained control under its contract with OMI. We address each argument below. First, OMI argues that this Court should apply, and the trial court should have applied, an “essential government functions test” to determine whether OMI was an agent of the City. OMI argues that the Court should apply the definition of “agent” found in the Public Records Act under section 119.011(2), Florida Statutes (2018), and the case law applying that definition. The trial court rejected OMI’s proposed “essential government functions test” and denied OMI’s motion for summary judgment. Because the criteria for determining whether a contractor is subject to the Public Records Act has a different purpose than those used to determine whether a contractor is acting on behalf of a governmental agency, we decline OMI’s invitation to expand the definition of “agent” for the purposes of sovereign immunity. Accordingly, we affirm the trial court’s decision. OMI’s second theory for being entitled to summary judgment was it was an agent of the City because the City retained control over OMI in the parties’ contract. This Court recently reaffirmed its position that under agency theory, it is the right of control rather than the relationship between the parties that determines whether an agency relationship exists. Blue v. Weinert, 284 So. 3d 1176, 1177–78 (Fla. 1st DCA 2019) (citing Nazworth v. Swire Fla., Inc., 486 So. 2d 637, 638 (Fla. 1st DCA 1986)). Even though the contract terms control the relationship between OMI and the City, as in Blue, there are provisions in the contract that support the principle that OMI was an agent of the City, and there are provisions in the contract that undermine that principle. Blue, 284 So. 3d at 1177. Because there are conflicting provisions in the contract, there is a doubt about whether OMI is in fact an agent of the City. If OMI is an agent of the City, it is entitled to sovereign immunity, and the inverse is also true. Thus, whether OMI is an agent of the City is a material fact in this case. Since there is an unresolved issue of material fact, the trial court would have erred if it would have granted OMI’s motion for summary judgment. See 2 Moore v. Morris, 475 So. 2d 666, 668 (Fla. 1985) (holding that conflicting evidence raises an issue of material fact, the issue has to be submitted to the jury, and summary judgment should not be granted). Therefore, we agree with the trial court that OMI was not entitled to summary judgment. Finally, we turn to the trial court’s order granting Ms. Johnson’s motion for summary judgment. Ms. Johnson moved for summary judgment on the principle that OMI was not an agent of the City and that there were no genuine issues of material fact. As shown above, there was a genuine issue of material fact. Therefore, the trial court erred when it granted Ms. Johnson’s motion for summary judgment. AFFIRMED in part, REVERSED in part, and REMANDED. ROBERTS, ROWE, and BILBREY, JJ., concur. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Daniel J. Santaniello, Daniel S. Weigner, Dale J. Paleschic, Tabitha G. Jackson, and Alec G. Mason of Luks, Santaniello, Petrillo & Cohen, Fort Lauderdale, for Appellant. Patrick V. Douglas of Douglas & Carter, Lake City; and Zackery A. Scharlepp of Coppins Monroe, P.A., Tallahassee, for Appellees. 3