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Igwe v. City of Miami

Florida Court of Appeals, Third District

December 26, 2019

Victor Igwe, Appellant/Cross-Appellee,
v.
City of Miami, Appellee/Cross-Appellant.

         Not final until disposition of timely filed motion for rehearing.

          An Appeal from the Circuit Court for Miami-Dade County, Lower Tribunal No. 11-35238 Miguel M. de la O, Judge.

          Amlong & Amlong, P.A., William R. Amlong, Karen Coolman Amlong, and Ryan C. Brenton (Fort Lauderdale), for appellant/cross-appellee.

          Victoria Méndez, City Attorney, and Kerri L. McNulty, Sr. Appellate Counsel, for appellee/cross-appellant.

          Before FERNANDEZ, MILLER and GORDO, JJ.

          GORDO, J.

         Victor Igwe appeals the trial court's order granting the City of Miami's Motion to Set Aside the Verdict and entry of final judgment in favor of the City. The trial court set aside the verdict based upon the jury's finding that Igwe failed to exhaust his administrative remedies, concluding that proceedings before the City's Civil Service Board would not have been futile. On appeal, Igwe contends that he was not a City employee subject to exhaustion requirements. He further argues that even if he were subject to these requirements, the City waived its ability to assert this defense.[1] We affirm finding that the trial court did not abuse its discretion.

         FACTS AND PROCEDURAL BACKGROUND

         Igwe served two four-year terms as the Independent Auditor General ("IAG") for the City of Miami from May of 2003 to mid-2011. During his time as IAG, Igwe cooperated with the Securities and Exchange Commission in investigating the City. Eventually, Igwe's second term as IAG expired and the City terminated him on June 27, 2011. The Commission launched a nationwide search for another qualified CPA to fill the position.

         On October 25, 2011, Igwe filed a lawsuit alleging that he had been illegally terminated in violation of Florida's Whistle-blower Act. See § 112.3187, Fla. Stat. (2019). Igwe contended that the Commission's decision not to renew his contract was in retaliation for his cooperation with the SEC. The complaint alleged Igwe had not sought review from the Board because the proceedings would have been futile.

         The City pleaded Igwe's failure to exhaust his administrative remedies as an affirmative defense. That defense was never stricken by the trial court and remained available to the City throughout the pendency of the litigation. When the case proceeded to trial, the defense was argued by the City, controverted by Igwe and included on the verdict form for the jury's consideration.

         Although the verdict was in Igwe's favor, the jury also specifically found on the verdict form that Igwe had failed to exhaust his administrative remedies prior to filing the case. Post-trial, Igwe filed a motion to strike the City's exhaustion defense, which the trial court denied. The City then filed a motion to set aside the verdict, based on Igwe's failure to appeal to the Board. The trial court granted that motion and entered judgment in the City's favor finding that Igwe was required to appeal to the Board and that those proceedings would not have been futile. This appeal followed.

         STANDARD OF REVIEW

         Determinations of futility are left to the trial court's sound discretion and are overturned on appeal only where the trial judge has clearly abused his discretion. See S. Fla. Blood ...


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