DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
FREDRICK GUTTENBERG and JENNIFER GUTTENBERG,
as Co-Personal Representatives of the
ESTATE OF JAIME T. GUTTENBERG,
Appellants,
v.
SMITH & WESSON CORP., n/k/a SMITH & WESSON SALES
COMPANY, INC., and SUNRISE TACTICAL SUPPLY, LLC,
Appellees.
No. 4D21-2268
[January 4, 2023]
Appeal from the Seventeenth Judicial Circuit, Broward County; Patti
Englander Henning, Judge; L.T. Case No. CACE18-12475.
Stephen F. Rosenthal of Podhurst Orseck, P.A., Miami, for appellants.
William P. Geraghty, Daniel B. Rogers, and Michael G. Polatsek of
Shook, Hardy & Bacon L.L.P., Miami, and Christopher G. Oprison of DLA
Piper LLP, Miami, for appellee Smith & Wesson Corp. n/k/a Smith &
Wesson Sales Company, Inc.
FORST, J.
Appellants Fredrick and Jennifer Guttenberg appeal the trial court’s
order dismissing Appellants’ complaint for declaratory relief. There is a
line between an acceptable claim for declaratory judgment and an
unacceptable request for a court to provide an “advisory opinion.” That
line is drawn without regard to the substantive merits of a potential cause
of action. Here, the trial court concluded that Appellants were requesting
the latter. We agree and accordingly affirm, without commenting on the
viability of any potential claim(s) that may be filed by Appellants against
Appellees.
Background
Appellants’ fourteen-year-old daughter was one of the seventeen
victims senselessly killed by gunfire on February 14, 2018, at Marjory
Stoneman Douglas High School. An additional seventeen individuals were
wounded and survived.
Later that year, Appellants filed a complaint for declaratory relief
against Appellees Smith & Wesson and Sunrise Tactical Supply, the
manufacturer and seller, respectively, of the firearm used by the gunman
on that tragic day. Within the complaint, Appellants explained that they
“wish[ed] to sue” Appellees for “their role in manufacturing, marketing,
and selling the M&P 15 semi-automatic rifle” that was used to kill their
daughter, premised on the contention that Appellees were “legally
responsible for their complicity in the entirely foreseeable, deadly use of
the assault-style weapons they place on the market.”
However, the complaint recognized a potential obstacle—the first two
subsections of section 790.331, Florida Statutes (2018), and the
“automatic sanction” created by subsection (6)(b) of that statute. Section
790.331 is titled “Prohibition of civil actions against firearms or
ammunition manufacturers, firearms trade associations, firearms or
ammunition distributors, or firearms or ammunition dealers.” The
pertinent provisions of section 790.331 are as follows:
(1) The Legislature finds and declares that the manufacture,
distribution, or sale of firearms and ammunition by
manufacturers, distributors, or dealers duly licensed by the
appropriate federal and state authorities is a lawful activity
and is not unreasonably dangerous, and further finds that the
unlawful use of firearms and ammunition, rather than their
lawful manufacture, distribution, or sale, is the proximate
cause of injuries arising from their unlawful use.
(2) Except as permitted by this section, a legal action against
a firearms or ammunition manufacturer, firearms trade
association, firearms or ammunition distributor, or firearms
or ammunition dealer on behalf of the state or its agencies and
instrumentalities, or on behalf of a county, municipality,
special district, or any other political subdivision or agency of
the state, for damages, abatement, or injunctive relief
resulting from or arising out of the lawful design, marketing,
distribution, or sale of firearms or ammunition to the public
is prohibited. However, this subsection does not preclude a
natural person from bringing an action against a firearms or
ammunition manufacturer, firearms trade association,
firearms or ammunition distributor, or firearms or
ammunition dealer for breach of a written contract, breach of
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an express warranty, or injuries resulting from a defect in the
materials or workmanship in the manufacture of a firearm or
ammunition.
(3) A county, municipality, special district, or other political
subdivision or agency of the state may not sue for or recover
from a firearms or ammunition manufacturer, firearms trade
association, firearms or ammunition distributor, or firearms
or ammunition dealer damages, abatement, or injunctive
relief in any case that arises out of or results from the lawful
design, marketing, distribution, or sale of firearms or
ammunition to the public.
....
(6)(b) In any civil action where the court finds that the
defendant is immune as provided in this section, the court
shall award the defendant all attorney’s fees, costs and
compensation for loss of income, and expenses incurred as a
result of such action.
§ 790.331 (1), (2), (3), (6)(b), Fla. Stat. (2018).
Appellants contend that section 790.331 prohibits (and potentially
punishes) only suits by state actors against firearms manufacturers, not
those brought by private citizens. Nevertheless, Appellants were hesitant
to test that theory by filing their tort claims against Appellees, as a lawsuit
might subject them to the sanctions provided in section 790.331(6)(b) if
the trial court found Appellees were immune from suit.
As a result, Appellants filed the instant complaint for declaratory relief,
requesting that the trial court declare section 790.331 “is inapplicable and
does not prohibit an individual person from bringing any cause of action
for damages, abatement, or injunctive relief against a firearms
manufacturer, distributor, or dealer arising out of their design, marketing,
distribution, or sale of firearms to the public.” (emphasis added).
Alternatively, Appellants requested that the trial court declare subsections
790.331(2), (3), and (6) unconstitutional under the Florida Constitution
because they violate Appellants’ constitutional right of access to courts.
Appellees moved to dismiss the complaint, arguing that Appellants did
not show a present adversity or conflict which would entitle them to
declaratory relief, and as a result, the trial court was without jurisdiction
to address the merits of Appellants’ claims. Appellees never offered an
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interpretation of the statute as to whether they were immune from suit,
focusing solely on the jurisdiction argument.
Ultimately, the trial court dismissed Appellants’ complaint for
declaratory relief on the basis that the court lacked jurisdiction, and never
reached the issue of whether section 790.331 barred claims from private
citizens nor whether certain provisions of section 790.331 were
unconstitutional. Specifically, the trial court found that Appellants’
complaint for declaratory relief was an impermissible attempt to solicit
“legal advice to help them decide whether they should file a suit,” and that
Appellants would have to test their claims in an adversarial proceeding if
they wished to establish jurisdiction. This appeal followed.
Analysis
A. Standard of Review
“Generally, the standard of review of a dismissal for failure to state a
cause of action is de novo. However, in cases where the complaint seeks
declarative relief, the standard of review is abuse of discretion.” Acad.
Express, LLC v. Broward County,
53 So. 3d 1188, 1190 (Fla. 4th DCA 2011)
(citations omitted); accord Kelner v. Woody,
399 So. 2d 35, 37 (Fla. 3d DCA
1981) (internal citations omitted) (“[T]he granting of [declaratory] relief
remains discretionary with the [trial] court, and not the right of a litigant
as a matter of course. The court’s ruling is accorded great deference, and
appellants have the burden of showing clear error for reversal.”); Fla.
Carry, Inc. v. City of Tallahassee,
212 So. 3d 452, 465 (Fla. 1st DCA 2017)
(“When a trial court dismisses a count in a complaint seeking a declaratory
judgment or declines to address the claim, the trial court’s ruling is
accorded great deference. As such, the standard of review as to the
dismissal of a declaratory judgment claim is whether the trial court abused
its discretion.”).
Notwithstanding, we also have recognized that “to the extent that the
dismissal is based upon a legal determination, our review is de novo.”
Goldman v. Lustig,
237 So. 3d 381, 384 (Fla. 4th DCA 2018) (quoting Bloch
v. Del Rey,
208 So. 3d 189, 192 (Fla. 3d DCA 2016)).
“The test of the sufficiency of a complaint in a declaratory judgment
proceeding is not whether the complaint shows that the plaintiff will
succeed in getting a declaration of rights in accordance with his theory
and contention, but whether he is entitled to a declaration of rights at all.”
S. Riverwalk Invs., LLC v. City of Fort Lauderdale,
934 So. 2d 620, 622 (Fla.
4
4th DCA 2006) (quoting Golf Club v. City of Plantation,
717 So. 2d 166, 171
(Fla. 4th DCA 1998)).
B. Elements required to obtain a declaratory judgment
“A declaratory judgment is a statutorily created remedy.” Martinez v.
Scanlan,
582 So. 2d 1167, 1170 (Fla. 1991). Chapter 86, Florida Statutes
(2018), governs declaratory actions and “[i]ts purpose is to settle and to
afford relief from insecurity and uncertainty with respect to rights, status,
and other equitable or legal relations and is to be liberally administered
and construed.” § 86.101, Fla. Stat. (2018).
Declaratory relief affords any person “whose rights, status, or other
equitable or legal relations” that “are affected by a statute” to determine
any question of construction or validity arising under that statute, and
“obtain a declaration of rights, status, or other equitable or legal relations
thereunder.” § 86.021, Fla. Stat. (2018).
However, the Florida Supreme Court has explained that individuals
seeking declaratory relief must show that:
there is a bona fide, actual, present practical need for the
declaration; that the declaration should deal with a present,
ascertained or ascertainable state of facts or present
controversy as to a state of facts; that some immunity, power,
privilege or right of the complaining party is dependent upon
the facts or the law applicable to the facts; that there is some
person or persons who have, or reasonably may have an
actual, present, adverse and antagonistic interest in the
subject matter, either in fact or law; that the antagonistic and
adverse interest[s] are all before the court by proper process
or class representation and that the relief sought is not merely
the giving of legal advice by the courts or the answer to
questions propounded from curiosity. These elements are
necessary in order to maintain the status of the proceeding as
being judicial in nature and therefore within the constitutional
powers of the courts.
Martinez,
582 So. 2d at 1170 (quoting May v. Holley,
59 So. 2d 636, 639
(Fla. 1952)). Accordingly, “although a court may entertain a declaratory
action regarding a statute’s [construction or] validity, there must be a bona
fide need for such a declaration based on present, ascertainable facts or
the court lacks jurisdiction to render declaratory relief.”
Id. (citing Ervin
v. Taylor,
66 So. 2d 816 (Fla. 1953)).
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Even though the legislature has expressed its intent that the
declaratory judgment act should be broadly construed, there
still must exist some justiciable controversy between adverse
parties that needs to be resolved for a court to exercise its
jurisdiction. Otherwise, any opinion on a statute’s validity
would be advisory only and improperly considered in a
declaratory action.
Id. at 1170–71.
In the context of a complainant seeking declaratory relief regarding the
construction or validity of a statute, courts have held that a present
controversy will exist only if the underlying matter involves a violation of
that statute and/or penalties resulting therefrom. For example, in Florida
Carry, the First District Court of Appeal set out a four-element test, derived
from May v. Holley, for determining “entitle[ment] to a declaratory
judgment”:
[O]ne must demonstrate that “(1) a good-faith dispute exists
between the parties; (2) he presently has a justiciable question
concerning the existence or non-existence of a right or status,
or some fact on which such right or status may depend; (3) he
is in doubt regarding his right or status[;] . . . and (4) a bona-
fide, actual, present, and practical need for the declaration
exists.”
Fla. Carry, Inc.,
212 So. 3d at 465 (alteration in original) (quoting Rhea v.
Dist. Bd. of Trs. of Santa Fe Coll.,
109 So.3d 851, 859 (Fla. 1st DCA 2013)).
C. Appellants have not demonstrated entitlement to a declaratory
judgment
Florida Carry also involved section 790.33, Florida Statutes (2013),
which is titled “Field of regulation of firearms and ammunition preempted.”
There, two “gun rights” organizations sued Tallahassee local government
officials for noncompliance with the statute’s provision that the State is
“occupying the whole field of regulation of firearms and ammunition . . .
to the exclusion of all existing and future county, city, town, or municipal
ordinances or any administrative regulations or rules adopted by local or
state government relating thereto,” and declaring “[a]ny such existing
ordinances, rules, or regulations . . . null and void.”
212 So. 3d at 455.
The defendants filed a counterclaim challenging the statute’s provision
imposing civil damage penalties against local officials who pass gun
6
control ordinances which, as one commentator put it, “ran afoul of the
state’s preemption statute.” Bradley Pough, Understanding the Rise of
Super Preemption in State Legislatures, 34 J.L. & POL. 67, 68 (2018); Fla.
Carry, Inc.,
212 So. 3d at 456.
Addressing the counterclaim, the First District concluded that “not only
was there no violation of [the statute] that ha[d] occurred in th[e] case, but
there were also no penalties imposed. As such, no bona-fide, actual,
present, and practical need exist[ed] for the declaration sought by [the
complainants].” Fla. Carry, Inc.,
212 So. 3d at 466.
Here, Appellants have refrained from filing any tort claims against
Appellees which could potentially violate section 790.331 and lead to the
imposition of “penalties,” opting instead to file the instant complaint for
declaratory relief to determine whether their potential tort claims, if filed,
would constitute a violation of the statute and subject them to liability. 1
Thus, we cannot conclude “a good-faith dispute exists between the parties”
or “a bona-fide, actual, present, and practical need for the declaration
exists.” We agree with the trial court that the holding in International
Longshoremen’s and Warehousemen’s Union, Local 37 v. Boyd is on point:
Appellants in effect asked the District Court to rule that a
statute the sanctions of which had not been set in motion
against individuals on whose behalf relief was sought,
because an occasion for doing so had not arisen, would not be
applied to them if in the future such a contingency should
arise. That is not a lawsuit to enforce a right; it is an endeavor
to obtain a court’s assurance that a statute does not govern
hypothetical situations that may or may not make the
challenged statute applicable. Determination of the scope and
constitutionality of legislation in advance of its immediate
adverse effect in the context of a concrete case involves too
remote and abstract an inquiry for the proper exercise of the
judicial function. Since we do not have on the record before
us a controversy appropriate for adjudication, the judgment
of the District Court must be vacated, with directions to
dismiss the complaint. It is so ordered.
347 U.S. 222, 223–24 (1954) (emphasis added) (internal citations omitted);
see also Ervin v. City of N. Miami Beach,
66 So. 2d 235, 236–37 (Fla. 1953)
(“In other words, if the construction or validity of a statute . . . is drawn in
1Appellees never offered an interpretation of the statute as to whether they were
immune from suit, focusing solely on the jurisdiction argument.
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question, the courts will not entertain an action based thereon, seeking a
determination as to either the construction or the validity thereof, where
there is no controversy as to the violation of such statute . . . . In these
circumstances there is no justiciable controversy.” (quoting 1 WALTER A.
ANDERSON, ACTIONS FOR DECLARATORY JUDGMENTS (2d ed. 1951)).
As in Boyd and Ervin, in the absence of controversy as to an actual
violation of section 790.331, the instant case does not, in its present
posture, present a “justiciable controversy” appropriate for declaratory
relief.
In reaching this conclusion, we recognize Appellants’ argument that
situations exist in which, even where no present controversy exists
involving a statutory violation, courts have recognized that a complainant
may nevertheless be entitled to declaratory relief under the “ripening seeds
of a controversy doctrine”:
[I]t is clear that to constitute an actual controversy so as to
render [a declaratory relief action] applicable, there need not
exist an actual right of action on one party against the other
in which consequential relief might be granted. “In a number
of cases it has been held and in others intimated that the
appearance of ‘ripening seeds of a controversy’ is sufficient.
Within this rule the ‘ripening seeds of a controversy’ appear
where the claims of the several parties in interest are present
and indicative of threatened litigation in the immediate future
which seems unavoidable, even though the differences
between such parties as to their legal rights have not yet
reached the stage of an actual controversy,” which involves
the active pressing of the claim on the one side and active
opposition thereto on the other. The rule has been laid down
broadly that a claim of a legal or equitable right on the one
hand and its denial on behalf of an adverse interest constitute
a case for proceeding for a declaratory judgment.
Ready v. Safeway Rock Co.,
24 So. 2d 808, 811 (Fla. 1946) (Brown, J,
concurring specially) (citation omitted).
However, the ripening seeds of controversy doctrine is
not a broad exception to the requirement of adversity or
conflict. While one may seek a declaration of his or her rights
without an allegation of actual injury, an aggrieved party must
nonetheless make some showing of a real threat of immediate
8
injury, rather than a general, speculative fear of harm that
may possibly occur at some time in the indefinite future.
State v. Fla. Consumer Action Network,
830 So. 2d 148, 152 (Fla. 1st DCA
2002).
Therefore, to demonstrate “ripening seeds of controversy,” the
complainant must make some showing of immediate injury or at least
show that litigation in the near future is unavoidable. See S. Riverwalk
Invs., LLC,
934 So. 2d at 623. “[I]t is well settled that, ‘Florida courts will
not render, in the form of a declaratory judgment, what amounts to an
advisory opinion at the instance of parties who show merely the possibility
of legal injury on the basis of a hypothetical state of facts which have not
arisen and are only contingent, uncertain, [and] rest in the future.’” Santa
Rosa Cnty. v. Admin. Com’n, Div. of Admin. Hearings,
661 So. 2d 1190,
1193 (Fla. 1995) (alteration in original) (quoting LaBella v. Food Fair, Inc.,
406 So. 2d 1216, 1217 (Fla. 3d DCA 1981); see also Fla. Soc’y of
Ophthalmology v. State, Dep’t of Pro. Regul.,
532 So. 2d 1278, 1279 (Fla.
1st DCA 1988) (“[A] suit under the declaratory judgment act must allege
an actual controversy based on real facts, not assumptions. . . . An action
for declaratory judgment will not be permitted to give rise to a mere
advisory opinion.”).
In the instant case, we cannot say that future harm or litigation is
unavoidable because Appellants could decline to file their potential tort
claims against Appellees or the latter may decline to rely upon section
790.331 in answering the complaint. In either event, Appellants would
not be exposed to any potential liability from the statute’s sanctions. When
a claim of unavoidable harm or litigation rests on pure speculation as to
what might happen, no ripening seeds of controversy exist, as the
complainant is essentially seeking an advisory opinion. Such an opinion
violates the requirement that a justiciable controversy exist, because an
advisory opinion is not “based upon some definite and concrete assertions
of right, the contest thereof involving the legal or equitable relations of
parties having adverse interests with respect to which the declaration is
sought.” Apthorp v. Detzner,
162 So. 3d 236, 241 (Fla. 1st DCA 2015).
To reiterate, Appellants’ claim of unavoidable harm or litigation is
speculative as many contingencies and unknowns must occur before a
trial court may determine the applicability of section 790.331 to a
complaint filed by Appellants against Appellees. Appellants’ complaint for
declaratory relief is, in essence, an attempt to obtain an advisory opinion
on the merits of a potential affirmative defense that Appellees might raise
in later litigation. As such, Appellants’ complaint does not present a
9
justiciable controversy for which declaratory relief would be appropriate.
See Calderon v. Ashmus,
523 U.S. 740, 747 (1998) (“[R]espondent here
seeks a declaratory judgment as to the validity of a defense the State may,
or may not, raise in a habeas proceeding. Such a suit does not merely
allow the resolution of a ‘case or controversy’ . . . but rather attempts to
gain a litigation advantage by obtaining an advance ruling on an
affirmative defense.”).
Conclusion
As set forth above, Appellants have failed to demonstrate the existence
of a bona fide need for a declaratory judgment as to the construction and
validity of section 790.331. We find no clear error in the trial court’s
dismissal of Appellants’ complaint for declaratory relief.
Affirmed.
MAY and DAMOORGIAN, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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