Third District Court of Appeal

State of Florida 

Opinion filed November 24, 2021.

Not final until disposition of timely filed motion for rehearing.

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No. 3D21-1199

Lower Tribunal No. 15-21793

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City of Sweetwater,

Appellant,

vs.

Richard Pichardo,

Appellee.

An Appeal from a non-final order from the Circuit Court for Miami-Dade 

County, Pedro P. Echarte, Jr., Judge.

Johnson, Anselmo, Murdoch, Burke, Piper & Hochman, P.A., and 

Michael R. Piper (Fort Lauderdale), for appellant.

Mesa Litigation & Legal Consulting, P.A., and Carlos A. Mesa, for 

appellee.

Before LOGUE, LOBREE and BOKOR, JJ. 

LOGUE, J.
2

The City of Sweetwater appeals a nonfinal order denying its motion for 

summary judgment based on sovereign immunity.1 Because the City owed 

no duty of care under the facts of this case, we reverse and remand for the 

trial court to grant the City’s motion for summary judgment.

Background

The factual and procedural background is summarized from a prior 

appeal of this case:

The City hired appellee Pichardo as a police officer. After 

he started employment, the City’s Mayor allegedly told Pichardo 

that he had been promoted to Lieutenant. About fifteen months 

later, the police chief sought to terminate Pichardo. Pichardo 

asked for the opportunity to resign instead. He was allowed to 

resign. After he left the City’s employ, Pichardo reviewed his 

personnel file. He alleges that only then did he learn he had not 

been promoted to Lieutenant. Instead, his file revealed he was a 

full-time police officer with the rank of acting Lieutenant.

In 2015, Pichardo filed a complaint for negligent 

misrepresentation in the circuit court, alleging that, but for the 

Mayor’s misinformation, Pichardo would not have resigned; 

instead, he would have taken advantage of a police officer’s 

procedural protections under the City’s collective bargaining 

1 We have jurisdiction. See Fla. R. App. P. 9.130(a)(3)(F)(iii) (providing for 

review of nonfinal orders that “deny a motion that . . . asserts entitlement to 

sovereign immunity”); see also School Bd. of Miami-Dade Cnty. v. City of 

Mia. Beach, 317 So. 3d 1203, 1205 (Fla. 3d DCA 2021) (“Based on the newly 

amended rule, ‘our jurisdictional inquiry now focuses not on the challenged 

order, but rather on the motion that the order adjudicates.’” quoting City of 

Sweetwater v. Pichardo, 314 So. 3d 540, 542 (Fla. 3d DCA 2020)); City of 

Dunedin v. Pirate’s Treasure, Inc., 255 So. 3d 902, 904–05 (Fla. 2d DCA 

2018) (accepting jurisdiction when first step of examination regarding 

sovereign immunity involved review of existence of legal duty, although 

finding of no duty meant no further analysis was required).
3

agreement and Florida statutes as to his termination. These 

protections, allegedly, were not available to one with the rank of 

Lieutenant, but were available to one with the rank of acting 

Lieutenant.

The operative complaint is the third amended complaint. 

The City moved to dismiss it on the ground that the City owed no 

tort duty to Pichardo. The motion came before the trial court for 

hearing on July 29, 2020, and on the same day, the trial court 

entered the challenged order denying the City’s motion. While 

the City’s motion did not assert entitlement to sovereign 

immunity, the trial court’s otherwise unelaborated order denying 

the City’s motion included the following sentence: “Defendant is 

not entitled to sovereign immunity as a matter of law.”

Pichardo, 314 So. 3d at 541–42.

We dismissed the City’s prior appeal from that order because the City’s 

motion to dismiss did not assert its entitlement to sovereign immunity in order 

to confer jurisdiction upon this court under the amended rule of appellate 

procedure. Fla. R. App. P. 9.130(a)(3)(F)(iii). The City then filed a motion for 

summary judgment asserting that it owed no duty of care to Pichardo and 

that it was otherwise entitled to sovereign immunity from suit. The trial court 

denied the City’s motion finding that a common law duty of care exists, and 

that the City was not immune from suit by virtue of the limited waiver of 

sovereign immunity under section 768.28, Florida Statutes. The City timely 

appealed from that order.
4

Analysis

“A duty of care is ‘a minimal threshold legal requirement for opening 

the courthouse doors.’” Wallace v. Dean, 3 So. 3d 1035, 1046 (Fla. 2009)

(quoting McCain v. Fla. Power Corp., 593 So. 2d 500, 502 (Fla. 1992)). “The 

existence of a legal duty is a question of law for determination by the court, 

and we review de novo the trial court’s rulings on that issue.” Kamal-Hashmat

v. Loews Mia. Beach Hotel Operating Co., 300 So. 3d 270, 272 (Fla. 3d DCA 

2019) (citing McCain, 593 So. 2d at 502).

We have previously stated that “[w]hile the non-existence of a legal 

duty may, in certain cases, be related to whether a municipality enjoys 

sovereign immunity from a particular claim, the two concepts are distinct.” 

Pichardo, 314 So. 3d at 542; see also Sanchez v. Miami-Dade Cnty., 286 

So. 3d 191, 192 (Fla. 2019) (“[D]uty and sovereign immunity are not to be 

conflated.”); Pirate’s Treasure, 255 So. 3d at 904 (“[T]here is a significant 

distinction ‘between a lack of liability under established tort law and the 

presence of sovereign immunity.’” quoting Wallace, 3 So. 3d at 1044). “If no 

duty of care is owed with respect to [the] alleged negligent conduct, then 

there is no governmental liability, and the question of whether the sovereign 

should be immune from suit need not be reached.” Pollock v. Fla. Dep’t of 

Highway Patrol, 882 So. 2d 928, 932 (Fla. 2004) (citations omitted). Simply 
5

put, “the absence of a duty of care between the defendant and the plaintiff 

results in a lack of liability, not application of immunity from suit.” Wallace, 3 

So. 3d at 1044–45 (citation omitted). 

Our high court has stated that “for there to be governmental tort liability, 

there must be either an underlying common law or statutory duty of care with 

respect to the alleged negligent conduct.” Trianon Park Condo. Ass’n v. City 

of Hialeah, 468 So. 2d 912, 917 (Fla. 1985); see also Clerk of Cir. Ct. & 

Comptroller of Collier Cnty. v. Doe, 292 So. 3d 1254, 1259 (Fla. 2d DCA 

2020) (“[I]n the absence of a statute or common law creating a governmental 

duty of care, an individual cannot pursue a cause of action for negligence 

against a governmental entity.”). With this framework in mind, we turn our 

analysis to the threshold question: Does the City owe a common law or 

statutory duty of care to Pichardo under the facts alleged in the complaint?

The crux of Pichardo’s complaint is that but for the inaccurate 

statement by the City’s then mayor that Pichardo had been promoted to fulltime police lieutenant, Pichardo would not have resigned when faced with 

termination, thereby forfeiting the rights afforded to full-time police officers.

Pichardo has not pointed us to any statute that imposes a duty on the City to 

provide accurate information under such facts, and we have found none. 
6

Therefore, the only avenue available for Pichardo to pursue his negligent

misrepresentation claim is if the City owed a common law duty of care.

Florida courts have been disinclined to find municipalities and other 

sovereign entities liable for the preparation, maintenance, and “active 

dissemination of inaccurate information.” Pirate’s Treasure, 255 So. 3d at 

905 (holding that a city bears no statutory or common law duty to furnish 

“accurate information” regarding the city’s development code to a property 

owner).

2 We view this line of cases as determinative of the question before 

us. The City’s mayor owed no common law or statutory duty of care to 

provide Pichardo accurate information regarding his employ with the City. In 

the absence of a duty of care, there can be no governmental liability imposed 

upon the City for the alleged negligent misrepresentation of such information.

2 See, e.g., Layton v. Fla. Dep’t of Highway Safety & Motor Vehicles, 676 So. 

2d 1038, 1041 (Fla. 1st DCA 1996) (holding that the State has no common 

law or statutory duty to a licensed driver to “accurately maintain motor vehicle 

records”); City of Tarpon Springs v. Garrigan, 510 So. 2d 1198, 1199–1200 

(Fla. 2d DCA 1987) (holding that the city’s building inspector was not liable 

to plaintiffs for the “alleged negligent furnishing of incorrect information” 

regarding the federal flood insurance program requirements); Chester v. 

Metro. Dade Cnty., 493 So. 2d 1119, 1120 (Fla. 3d DCA 1986) (“Absent an 

underlying common law or statutory duty of due care, there can be no tort 

liability attached to Dade County in this case for the negligent preparation of 

the subject accident report.”).
7

We recently addressed a similar issue in the contract context. In City 

of Miami Firefighters’ & Police Officers’ Retirement Trust & Plan v. Castro, 

279 So. 3d 803 (Fla. 3d DCA 2019), city pension administrators advised 

members of the firefighters and police officers pension plan, prior to the 

adoption of a fiscal emergency ordinance, that to preserve their vested 

pension benefits they had to either retire or enter the city’s DROP3 plan. This 

mistaken advice resulted in city employees prematurely retiring and 

adversely affecting their retirement benefits. Id. at 805–06. We reviewed the 

city’s pension ordinances and held that the administrators did not breach a 

contractual duty when their staff provided the plaintiffs with “poor advice” 

regarding the financial emergency ordinance and the resulting impact on the 

plaintiffs’ retirement benefits. This holding reflected our unwillingness to 

impose “an express contractual duty guaranteeing the accuracy of advice 

provided to pension beneficiaries on pending legislation.” Id. at 808. We also 

emphasized that “municipal employees routinely provide advice to their 

colleagues and the public without meaning to waive sovereign immunity, 

even when the advice is mistaken.” Id. Our analysis in Castro can be similarly 

applied here in the tort context.

3 DROP is an acronym for Deferred Retirement Option Program.
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Conclusion

Because the City of Sweetwater owed no common law or statutory duty

of care to convey accurate information to Pichardo regarding his employment 

rank, the City is free from governmental liability as to Pichardo’s negligent 

misrepresentation claim. Accordingly, we reverse the trial court’s order and 

remand for the court to grant summary judgment in favor of the City.

Reversed and remanded with instructions.