Opinion
No. 98-0726.
Opinion filed June 16, 1999.
Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Rosemary Usher Jones, Judge; L.T. No. 93-22732 02.
Amy D. Shield of Amy D. Shield, P.A., Boca Raton, and Eugene K. Pettis of Haliczer, Pettis White, P.A., Fort Lauderdale, for appellant.
Jason R. Marks and Scott A. Mager of Kluger, Peretz, Kaplan Berlin, P.A., Fort Lauderdale, for appellee.
The School Board of Broward County ("School Board") appeals a final judgment awarding $850,000 in damages to Andrew Greene ("Greene"). We affirm the final judgment; however, we reverse and remand to the trial court to limit the collectibility of the judgment to $100,000, in accordance with the sovereign immunity statute.
Greene was a part-time teacher in Broward County. While running for a position on the school board, derogatory statements gathered in a disciplinary investigation of Greene were released to a local newspaper. However, Greene was never informed these derogatory statements were being placed in his personnel file, as required under section 231.291, Florida Statutes. As such, Greene filed a two count complaint against the School Board alleging negligence and invasion of privacy because derogatory statements regarding Greene were improperly released and opened for inspection by the School Board. On the issue of negligence, the jury was instructed to decide:
Whether the School Board was negligent in releasing the personnel file of Andrew Greene, and, if so, whether such negligence was a legal cause of loss, injury or damage sustained by the plaintiff.
Further, as to the invasion of privacy claim, the jury was instructed, in pertinent part, to decide:
Whether the School Board disclosed to the public, or caused to be disclosed to the public, the facts or matters as Mr. Greene contends.
The jury awarded Greene $850,000 in damages. Thereafter, the School Board motioned to limit the collectibility of the judgment under section 768.28, Florida Statutes, Sovereign Immunity; however, the motion was denied.
Florida's Waiver of Sovereign Immunity, section 768.28, Florida Statutes, provides,
Neither the state nor its agencies or subdivisions shall be liable to pay a claim or a judgment by any one person which exceeds the sum of $100,000 or any claim or judgment, or portions thereof, which, when totaled with all other claims or judgments paid by the state or its agencies or subdivisions arising out of the same incident or occurrence, exceeds the sum of $200,000.
§ 768.28(5), Fla. Stat. (1997).
On appeal, although both parties concede the collection of the judgment should be limited by the statute, they dispute whether this claim represents a single incident or occurrence or two separate incidents or occurrences. The School Board argues the collectibility of the judgment should be limited to $100,000 because Greene's complaint only reflects one incident or occurrence, the release of the information to the public. However, Greene asserts that there were two occurrences, i.e, placing the information in his file, and releasing the information to the public. Greene raises this argument for the first time on appeal; thus, Greene's argument is not preserved.See Atco Constr. Dev. Co. v. Beneficial Sav. Bank, 523 So.2d 747, 750-51 (Fla.5th DCA 1988) (an argument may not be raised for the first time on appeal).
The basis for Greene's allegations of negligence and invasion of privacy in his second amended complaint was the School Board's improper release of derogatory information to the public. In addition, the jury was instructed to decide whether negligence and invasion of privacy resulted from the improper release of the derogatory statements. As such, the damage award rendered by the jury was based upon the release of the information to the public, a single incident or occurrence.
Therefore, we conclude that, under section 768.28, Florida Statutes, the collectibility of Greene's judgment should be limited to $100,000. See § 768.28(5), Fla. Stat. Accordingly, we reverse and remand.
AFFIRMED IN PART; REVERSED AND REMANDED IN PART.
GUNTHER, POLEN and FARMER, JJ., concur.