final until disposition of timely filed motion for rehearing.
Appeal from the Circuit Court for Miami-Dade County, Lower
Tribunal No. 11-35238 Miguel M. de la O, Judge.
& Amlong, P.A., William R. Amlong, Karen Coolman Amlong,
and Ryan C. Brenton (Fort Lauderdale), for
Victoria Méndez, City Attorney, and Kerri L. McNulty,
Sr. Appellate Counsel, for appellee/cross-appellant.
FERNANDEZ, MILLER and GORDO, JJ.
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. We affirm finding that the trial court did
not abuse its discretion.
AND PROCEDURAL BACKGROUND
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
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
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
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
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.