Date: 08-27-2014

Case Style: Katherine A. Chmielewski v. City of St. Pete Beach, Florida

Case Number: 2D13-4923

Judge: LaRose

Court: Florida Court of Appeal, Second District on appeal from the Circuit Court, Pinellas

Plaintiff's Attorney: Jennifer A. Winegardner of The Chase Law
Firm, Tallahassee; and M. Stephen Turner
and Leonard M. Collins of Broad & Cassel,
Tallahassee, for Appellants.

Defendant's Attorney: Susan H. Churuti of Bryant Miller Olive P.A.,
Tampa; and Elizabeth W. Neiberger of Bryant
Miller Olive, P.A., Tallahassee, for Appellee.

Michael J. Glazer and Steven M. Hogan of
Ausley McMullen, Tallahassee, for Amicus
Curiae The First Amendment Foundation,
Inc.

Description: Chester J. and Katherine A. Chmielewski, the original parties in this case,1
appeal the trial court's order granting, with prejudice, the City of St. Pete Beach's motion
to dismiss their complaint for failure to state a cause of action. The Chmielewskis had
filed suit to secure the disclosure of public records. We have jurisdiction, see Fla. R.
App. P. 9.030(b)(1)(A), and reverse.
The Chmielewskis own a home on subdivision property in the City near
the Don Cesar hotel. In 2006, the Chmielewskis sued the City to quiet title to a
beachfront parcel adjacent to their residential lot. About two years later, the
Chmielewskis and the City settled the lawsuit through mediation. The City
acknowledged the Chmielewskis as the fee simple owners of the disputed parcel. As
owner of the nearby Don Vista Community Center, the City agreed that its ownership
did not give "members of the general public the right to travel onto" the parcel now quiet
titled to the Chmielewskis. The parties also agreed to the dismissal, with prejudice, of
the quiet title lawsuit. The parties recognized that settlement of the lawsuit did not
waive or relinquish any claims that either party "had, now has, or hereafter acquires
against the other party." Finally, the parties agreed that any ambiguity regarding the
meaning of the settlement agreement would be submitted to mediation. The parties'
1During the pendency of this appeal, Mr. Chmielewski died. We granted a
motion for substitution of party and Paul Chmielewski, the parties' son and his father's
personal representative, has been substituted in this matter. See Fla. R. Civ. P.
1.260(a).
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settlement was memorialized in a stipulated final judgment entered by the trial court. 2
So ended the quiet title lawsuit.
For purposes of our analysis, it is important to know that before settling
the quiet title lawsuit, the City engaged in private discussions with its counsel under
procedures specified in section 286.011(8), Florida Statutes (2008). Florida law is
solicitous of transparent government. Accordingly, as a general matter, meetings of
public bodies are open to the public. Section 286.011(8) provides a limited exception:
(8) Notwithstanding the provisions of subsection (1), any
board or commission of any state agency or authority or any
agency or authority of any county, municipal corporation, or
political subdivision, and the chief administrative or executive
officer of the governmental entity, may meet in private with the
entity's attorney to discuss pending litigation to which the
entity is presently a party before a court or administrative
agency, provided that the following conditions are met:
(a) The entity's attorney shall advise the entity at a public
meeting that he or she desires advice concerning the
litigation.
(b) The subject matter of the meeting shall be confined to
settlement negotiations or strategy sessions related to
litigation expenditures.
(c) The entire session shall be recorded by a certified court
reporter. The reporter shall record the times of
commencement and termination of the session, all
discussion and proceedings, the names of all persons
present at any time, and the names of all persons
speaking. No portion of the session shall be off the record.
The court reporter's notes shall be fully transcribed and
filed with the entity's clerk within a reasonable time after
the meeting.
(d) The entity shall give reasonable public notice of the time
and date of the attorney-client session and the names of
persons who will be attending the session. The session
shall commence at an open meeting at which the persons
2Neither party appealed the final judgment. See Fla. R. App. P. 9.110(b).
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chairing the meeting shall announce the commencement
and estimated length of the attorney-client session and the
names of the persons attending. At the conclusion of the
attorney-client session, the meeting shall be reopened, and
the person chairing the meeting shall announce the
termination of the session.
(e) The transcript shall be made part of the public record upon
conclusion of the litigation.
(Emphasis added.)
Such a meeting is a "shade meeting." See Sch. Bd. of Duval Cnty. v. Fla.
Pub. Co., 670 So. 2d 99, 99 (Fla. 1st DCA 1996). The parties before us agree on the
limited purpose of a shade meeting. They also acknowledge that upon conclusion of
the litigation discussed at the shade meeting, the transcript of the meeting is available
for public review. The Chmielewskis' access to the shade meeting transcript is the
center of the dispute before us. The City refuses to release it.
A bit more background information will be helpful. As we know, in settling
the quiet title lawsuit, the parties agreed that members of the general public had no right
to traverse the Chmielewskis' property. Our record also reflects that the City owned and
leased out the community center. Activities at the community center attracted patrons
who did not reside in the subdivision. Over time, the Chmielewskis observed patrons
from the nearby community center traverse their property for beach access. Peace
eluded the City and the Chmielewskis. About a year after settling the quiet title lawsuit,
the Chmielewskis sued the City for inverse condemnation based on the continuous use
of their property by patrons of the community center. In the inverse condemnation
lawsuit, they sought the shade meeting transcript from the now concluded quiet title law
suit. The City balked. The Chmielewskis then filed a public records request. See
§ 119.07, Fla. Stat. (2009). The City refused to release the transcript, arguing that the
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quiet title action lived on. The City posited that the transcript remained exempt from
public disclosure.
A third lawsuit followed. The Chmielewskis filed a complaint seeking
disclosure of public records. See § 119.11. The City moved to dismiss the complaint
because the shade meeting transcript remained exempt from disclosure.3 The City
argued that because the quiet title settlement provided for further mediation should a
dispute arise about the meaning of the agreement, the case was not concluded for
purposes of section 286.011(8)(e).
The trial court dismissed the public records lawsuit. It ruled that the facts
and issues of both lawsuits were alike, even though the legal theories differed. The trial
court found the quiet title lawsuit to be "still pending," thus rendering the transcript "not
subject to disclosure as a matter of law." This was error.
What is remarkable about the City's posture is that the mere potential for
postjudgment enforcement proceedings could indefinitely shield a shade meeting
transcript from public eyes, long after the underlying lawsuit ends. Unfortunately, the
City offers no meaningful standard to determine when a lawsuit is over. We have no
reason to doubt that with the entry of a final judgment disposing of the quiet title lawsuit,
that action ended. See Wagner v. Orange Cnty., 960 So. 2d 785, 791 (Fla. 5th DCA
2007) (noting that conclusion of the litigation generally occurs when final judgment is
entered). The City cannot seriously contend that any member of the public could not
have rightfully demanded the shade meeting transcript shortly after entry of the final
3The City also filed various postjudgment motions in the quiet title action to
consolidate that action with the inverse condemnation case. The trial court denied the
motions. Other motions by the City attempted to enforce the prior settlement agreement
as applicable to the condemnation case.
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judgment. Apparently fearing some unarticulated maleficent use of the shade meeting
transcript, the City urges secrecy. But the legislature has already drawn the boundary
line; upon conclusion of a lawsuit, the shade meeting transcript becomes public.
The City's posture calls for an unwarranted expansion of a limited
legislative exemption to the release of public records. It ignores Justice Brandeis'
maxim that "[s]unlight is said to be the best of disinfectants." Buckley v. Valeo, 424 U.S.
1, 67 n.80 (1976) (citing [Louis D.] Brandeis, Other People's Money [& How the Bankers
Use It] 62 (Nat'l Home Library Found. 1933) (1914)). In light of the legislative language,
we cannot agree with a position that makes the operation of government opaque. See
Bd. of Pub. Instruction of Broward Cnty. v. Doran, 224 So. 2d 693, 699 (Fla. 1969)
(noting that such matters as secret meetings and closed records have "become
synonymous with 'hanky panky' in the minds of public-spir[i]ted citizens"); Canney v. Bd.
of Pub. Instruction of Alachua Cnty., 278 So. 2d 260, 264 (Fla. 1973) ("If the board or
agency feels aggrieved, then the remedy lies in the halls of the Legislature and not in
efforts to circumvent the plain provisions of the statute by devious ways in the hope that
the judiciary will read some exception into the law."); City of Fort Myers v. News-Press
Pub. Co., Inc., 514 So. 2d 408, 411 (Fla. 2d DCA 1987) (same). Our duty is to construe
public records legislation in favor of open records; exemptions from disclosure are
construed narrowly and limited to their designated purpose. See Lightbourne v.
McCollum, 969 So. 2d 326, 332-33 (Fla. 2007) (addressing the public records act,
sections 119.01-.15); Zorc v. City of Vero Beach, 722 So. 2d 891 (Fla. 4th DCA 1998)
(addressing the Sunshine Law, section 286.011); Seminole Cnty. v. Wood, 512 So. 2d
1000, 1001 (Fla. 5th DCA 1987) (addressing closed litigation files).
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The City must demonstrate the applicability of a statutory exemption. See
Lightbourne, 969 So. 2d at 333; Barfield v. Sch. Bd. of Manatee Cnty., 135 So. 3d 560,
562 (Fla. 2d DCA 2014); Rameses, Inc. v. Demings, 29 So. 3d 418, 421 (Fla. 5th DCA),
review denied, 47 So. 3d 1290 (Fla. 2010). We resolve any doubt in favor of disclosure.
See Morris Publ'g Grp., LLC v. Fla. Dep't of Educ., 133 So. 3d 957, 960 (Fla. 1st DCA
2013). Our review of what constitutes a public record is de novo. Id. at 959; Bruckner
v. City of Dania Beach, 823 So. 2d 167 (Fla. 4th DCA 2002) (applying the same
standard of review to section 286.011 cases).
The City claims that when the Chmielewskis filed the inverse
condemnation lawsuit, it invoked the mediation process contained in the quiet title
settlement agreement. Thus, the City characterizes the matter at hand as an
enforcement proceeding stemming from the settlement of an earlier lawsuit. Not so.
Nothing in that settlement can be interpreted to suggest that the quiet title lawsuit is still
open, ongoing, or capable of being reopened as to ownership of the disputed parcel.4
Indeed, the parties requested and received a final judgment that ended the quiet title
lawsuit except for executory provisions of the agreement. See Wagner, 960 So. 2d at
791. Unlike the City, we can discern no meaningful connection between a lawsuit that
established the Chmielewskis' ownership of a parcel of land and a subsequent lawsuit
alleging a government taking, through inverse condemnation, of their property.
4Paragraph 6 of the agreement merely provides that in the event of an
ambiguity regarding the meaning of the agreement, the parties will submit such issues
to the mediator for a further mediation conference. It goes on to provide that no such
mediation conference is required to enforce the clear terms and conditions of the
agreement. The condemnation lawsuit presents no question of an ambiguity in the
agreement.
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The City relies on Wagner to support its position. Wagner found exempt
from disclosure certain items based on attorney-client privilege or work-product
doctrine. Wagner involved postjudgment collection efforts including a legislative claims
bill relating to the settlement of a wrongful death action. Id. at 786-87. The City's
reliance on Wagner is wholly misplaced. It offers us no pen to expand an exemption to
public disclosure. See Seminole Cnty., 512 So. 2d at 1001-02 (explaining that the
public records act supersedes lawyer-client privilege; the legislature, not the supreme
court, regulates disclosure of such records) (citing City of N. Miami v. Miami Herald
Publ'g Co., 468 So. 2d 218 (Fla. 1985), and Neu v. Miami Herald Publ'g Co., 462 So. 2d
821 (Fla. 1985)); see also State v. Coca-Cola Bottling Co. of Miami, Inc., 582 So. 2d 1,
2 (Fla. 4th DCA 1990) (reiterating that only the legislature can create such an extended
exemption); Op. Att'y Gen. Fla. 13-13 (2013) (advising that section 286.011(8)(e) does
not recognize a continuation of the exemption for "derivative claims" made in separate,
subsequent litigation and such an exemption cannot be read into the statute).
The shade meeting transcript became a matter of public record upon the
conclusion of the quiet title action through entry of a final judgment. The transcript does
not regain "secret" status just because a new tangentially related lawsuit is filed.

Outcome: Reversed and remanded with directions to the trial court to order the City
to disclose the shade meeting transcript.

Plaintiff's Experts:

Defendant's Experts:

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