source: Caselaw Access Project

author: WALLACE, Judge.

license: Public Domain

text:
    K. Mitchell WIGGINS, Appellant, v. TIGRENT, INC., f/k/a Whitney Information Network, Inc., a Colorado corporation, Appellee.
    No. 2D13-4033.
    District Court of Appeal of Florida, Second District.
    July 30, 2014.

      Victor Kline and Dariel Abrahamy of Greenspoon Marder, P.A., Orlando, for Appellant.
    Daniel J. DeLeo and Michael J. Labbee of Shumaker, Loop & Kendrick, LLP, Sarasota, for Appellee.
   WALLACE, Judge.

K. Mitchell Wiggins appeals the circuit court’s order denying his motion to vacate the final judgment entered against him in favor of Tigrent, Inc., fik/a Whitney Information Network, Inc., a Colorado corporation (Tigrent). Mr. Wiggins also asked the circuit court to dismiss the action as to him. Because the circuit court lacked personal jurisdiction over Mr. Wiggins, the judgment against Mr. Wiggins was void. Accordingly, the circuit court erred in denying Mr. Wiggins’ motion to vacate the judgment in accordance with Florida Rule of Civil Procedure 1.540(b)(4).

I. THE FACTS AND PROCEDURAL HISTORY

Tigrent is a Colorado corporation with its headquarters in Cape Coral, Florida. Western Clearing Corp., a Nevada limited liability company (WCC), has its offices in the State of Washington, which is where Mr. Wiggins lived and worked. In 2003, Tigrent and WCC entered into a written contract whereby WCC agreed to process electronic payments made by Tigrent’s customers and to transfer the funds to Tigrent’s bank accounts in Florida on a regular basis. The parties’ dispute arose in March 2011, when WCC allegedly failed to forward approximately $356,000 in funds belonging to Tigrent.

In July 2011, Tigrent filed a complaint against WCC and Mr. Wiggins, who it identified as “an individual manager” of WCC. In its complaint, Tigrent alleged five claims for relief: count I, breach of contract; count II, unjust enrichment; count III, breach of the implied covenant of good faith and fair dealing; count IV, breach of fiduciary duty; and count V, conversion. The complaint’s first four counts named only WCC as a defendant; the fifth count for conversion named both WCC and Mr. Wiggins. In its claim for conversion, Tigrent alleged that Mr. Wiggins had withheld Tigrent’s funds and had “utilized those funds to offset a separate corporate liability of WCC.”

Mr. Wiggins was served with the summons and a copy of the complaint in the State of Washington on July 15, 2011. However, neither he nor WCC filed an appearance in the action or otherwise responded to the complaint, and they were defaulted. On November 14, 2011, the circuit court entered a final judgment against WCC and Mr. Wiggins, jointly and severally, for $368,169.99. The circuit court also reserved jurisdiction to enter an award of attorney’s fees.

In March 2013, approximately fifteen months later, Mr. Wiggins filed a motion to vacate the final judgment against him in accordance with Florida Rule of Civil Procedure 1.540(b). In support of his motion, Mr. Wiggins alleged that the circuit court did not have personal jurisdiction over him and, for that reason, the judgment was void as to him and must be vacated. Mr. Wiggins also requested that he be dismissed from the action. In response, Ti-grent argued that the circuit court had properly exercised personal jurisdiction over Mr. Wiggins and, in any event, Mr. Wiggins “no longer ha[d] standing to raise his jurisdictional defense after the expiration of the one-year window provided by Florida Rule of Civil Procedure 1.540(b).”

II. THE CIRCUIT COURT’S RULING

Although the circuit court did not explain its reasoning in the order denying Mr. Wiggins’ motion, we have the benefit of a transcript of the motion hearing. In the hearing, the circuit judge made several statements that provide insight into the rationale for his ruling. Addressing Mr. Wiggins’ attorney, the circuit judge said:

Certainly if, let’s just say your client [Mr. Wiggins] dilly-dallied for whatever reason and had some excusable neglect, and then with all due diligence has meritorious defenses, files a proposed answer, motion to dismiss, et cetera, I don’t think he’s [opposing counsel] saying that your client necessarily is precluded from getting the judgment set aside and potentially challenging jurisdiction.
But you’ve not provided the Court here today any type of issue relative to his failure to respond or anything of that sort.
You’ve basically jumped straight to the chase saying, here’s my factual assertion that I don’t have any connections or ties to Florida, ergo not withstanding my default to the factual allegations, we should set aside the judgment and throw everything out.

Later, the circuit judge commented:

How do we get over the allegations, though, that they’ve alleged that it’s personal jurisdiction, your client was duly served and then failed to contest that prior to entry into A, the default, and then B, the final default judgment^]
My question is, what would preclude as he’s argued any defendant in any case to come in 19 years later and say, I defaulted to those allegations. But you know what, here’s my affidavit. I had no connections nor had any to the State [and undo] it all 19 years after the fact?

After both parties had completed their arguments on the motion, the circuit judge announced his ruling as follows:

In review of the Complaint there do appear to be two factual assertions or allegations to claim personal jurisdiction, and there was proper service, and that was not disputed, nor was otherwise admitted here ... today.
Having considered the relative arguments presented by the parties as well as the respective motions, the memorandums in opposition as well as the affidavits, I do find that Tigrent’s position is well taken.

After the hearing, the circuit court entered an order denying Mr. Wiggins’ motion. This appeal followed.

III.FRAMING THE ISSUES

The circuit judge’s comments and conclusions help us to frame the issues before us into two distinct questions. First, did the circuit court have long-arm jurisdiction over Mr. Wiggins under section 48.198, Florida Statutes (2011)? Second, did Mr. Wiggins waive his right to object to personal jurisdiction by failing to raise the issue until after the circuit court entered a default judgment against him? Because a conclusion that a waiver occurred would make it unnecessary to reach the issue of personal jurisdiction, we will consider the issue of waiver first.

IV.THE STANDARD OF REVIEW

The issue of whether Mr. Wiggins waived his right to object to personal jurisdiction by failing to raise the issue until after the entry of a default judgment is a question of law that we review de novo. See Kaaa v. Kaaa, 58 So.3d 867, 869 (Fla. 2010) (as revised on denial of rehearing). The de novo standard of review also applies to the review of an order determining whether a final judgment by default is void for lack of personal jurisdiction over the defendant. See Wendt v. Horowitz, 822 So.2d 1252, 1256 (Fla.2002); Schwartzberg v. Knobloch, 98 So.3d 173, 180 (Fla. 2d DCA 2012), review denied, 116 So.3d 383 (Fla.2013); Infante v. Vantage Plus Corp., 27 So.3d 678, 680 (Fla. 3d DCA 2009).

V.DISCUSSION

A. Waiver

The first question that we are called upon to decide is whether a nonresident defendant, who has been properly served with process, may ignore the proceeding until after a default judgment is entered and then move to vacate the judgment as void based on a lack of personal jurisdiction. Stated differently, the question is whether a nonresident defendant, who has been properly served, waives the defense of lack of personal jurisdiction by failing to raise the issue in a timely responsive pleading.

Tigrent argues that because Mr. Wiggins failed to respond timely to the complaint and essentially ignored the proceedings until after the circuit court entered a default judgment against him, he waived his right “to object to the trial court’s personal jurisdiction over him nearly two years later.” Mr. Wiggins responds that his failure to respond timely to the complaint does not result in a waiver. According to Mr. Wiggins, as long as his “first step” in the case was to challenge the circuit court’s personal jurisdiction over him — even though he took that first step after the entry of the default judgment— he could still properly raise the issue of personal jurisdiction.

Before analyzing the parties’ arguments, it will be helpful to review a few basic principles regarding the difference between void and voidable judgments and the effect of the entry of a judgment by a court that lacked personal jurisdiction of the defendant. This court has previously described the difference between a judgment that is “void” and one that is “voidable” as follows:

A void judgment is so defective that it is deemed never to have had legal force and effect. In contrast, a voidable judgment is a judgment that has been entered based upon some error in procedure that allows a party to have the judgment vacated, but the judgment has legal force and effect unless and until it is vacated.

Sterling Factors Corp. v. U.S. Bank Nat’l Ass’n, 968 So.2d 658, 665 (Fla. 2d DCA 2007) (citations omitted). A judgment that is entered against a defendant over whom the court lacks personal jurisdiction is a void judgment. Id. There is no time limitation on setting aside a void judgment. Johnson v. State, Dep’t of Revenue, ex rel. Lamontagne, 973 So.2d 1236, 1238 (Fla. 1st DCA 2008). On the contrary, a void judgment may be collaterally attacked at any time. Gibson v. Progress Bank of Fla., 54 So.3d 1058, 1061 (Fla. 2d DCA 2011); Rodriguez-Faro v. M. Escarda Contractor, Inc., 69 So.3d 1097, 1098 (Fla. 3d DCA 2011). A decision whether or not to vacate a void judgment is not within the ambit of a trial court’s discretion; if a judgment previously entered is void, the trial court must vacate the judgment. Horton v. Rodriguez Espaillat y Asociados, 926 So.2d 436, 437 (Fla. 3d DCA 2006) (quoting Dep’t of Transp. v. Bailey, 603 So.2d 1384, 1386-87 (Fla. 1st DCA 1992)).

Tigrent bases its argument that Mr. Wiggins waived the defense of lack of personal jurisdiction on the pertinent provisions of Florida Rule of Civil Procedure 1.140 concerning “Defenses.” The Rule states, in pertinent part, as follows:

(a) When Presented.
(1)Unless a different time is prescribed in a statute of Florida, a defendant shall serve an answer within 20 days after service of original process and the initial pleading on the defendant, or not later than the date fixed in a notice by publication.
(b) How Presented. Every defense in law or fact to a claim for relief in a pleading shall be asserted in the responsive pleading, if one is required, but the following defenses may be made by motion at the option of the pleader: (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, (5) insufficiency of service of process, (6) failure to state a cause of action, and (7) failure to join indispensable parties. A motion making any of these defenses shall be made before pleading if a further pleading is permitted.
(h) Waiver of Defenses.
(1) A party waives all defenses and objections that the party does not present either by motion under subdivisions (b), (e), or (j) of this rule or, if the party has made no motion, in a responsive pleading except as provided in subdivision (h)(2).
(2) The defenses of failure to state a cause of action or a legal defense or to join an indispensable party may be raised by motion for judgment on the pleadings or at the trial on the merits in addition to being raised either in a motion under subdivision (b) or in the answer or reply. The defense of lack of jurisdiction of the subject matter may be raised at any time.

(Emphasis added.)

Rule 1.540(b) is the other provision of the civil rules that is relevant to our consideration of this matter. The rule provides, in pertinent part, as follows:

(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud; etc. On motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, decree, order, or proceeding for the following reasons: ... (4) that the judgment or decree is void.... The motion shall be filed within a reasonable time, and for reasons (1), (2), and (3) not more than 1 year after the judgment, decree, order, or proceeding was entered or taken.

Notably, the one-year limitation in the rule on the time for filing the motion does not apply to instances where the judgment sought to be vacated is void.

The parties have not cited, and our independent research has not disclosed, any Florida appellate decision directly addressing the specific question of waiver by failure to appear or respond presented here. However, we note that rules 12 and 60 of the Federal Rules of Civil Procedure are substantially similar to the corresponding provisions of rules 1.140 and 1.540 of the Florida Rules of Civil Procedure, respectively. Accordingly, we look to federal decisions for assistance in analyzing the question that we are called upon to resolve. “Because the Florida Rules of Civil Procedure are modeled after the Federal Rules of Civil Procedure, federal decisions are highly persuasive in ascertaining the intent and operative effect of various provisions of the rules.” Wilson v. Clark, 414 So.2d 526, 531 (Fla. 1st DCA 1982).

In “R” Best Produce, Inc. v. DiSapio, 540 F.3d 115, 123 (2d Cir.2008), the Second Circuit said, “[I]t is ... well settled that voidness of a judgment for lack of personal jurisdiction can be asserted on a collateral challenge after entry of a default judgment.” The Second Circuit explained:

It might seem anomalous that an appearing party is deemed to waive lack of personal jurisdiction by not properly asserting it in a timely motion or pleading, but a non-appearing party with notice may suffer a default judgment and later seek relief under Rule 60(b)(4). Apart from juridical fixation on the concept of voidness, the unstated rationale for the distinction is very likely that a non-appearing defendant, even with notice, should be spared the burden of defending in a distant forum and a plaintiff should be careful to join only those defendants as to whom personal jurisdiction can successfully be established in the original action.

Id. In its review of a district court’s order denying a motion to vacate a final judgment, the Sixth Circuit held that the district court erred in concluding that a defendant waived its defense of lack of personal jurisdiction by failing to raise the issue until after a default judgment had been entered. Reynolds v. Int'l Amateur Athletic Fed’n, 23 F.3d 1110, 1120-21 (6th Cir.1994). Closer to home, the Eleventh Circuit has said:

Rule 60(b)(4) allows a litigant — even one who does not initially appear — to collaterally attack a judgment on the ground that it is void due to lack of personal jurisdiction. See, e.g., Hazen Research, Inc. v. Omega Minerals, Inc., 497 F.2d 151, 154 (5th Cir.1974). This is because “[a]n in personam judgment entered without personal jurisdiction over a defendant is void at to that defendant.” Combs v. Nick Garin Trucking, 825 F.2d 437, 442 (D.C.Cir.1987).

Sloss Indus. Corp. v. Eurisol, 488 F.3d 922, 924 (11th Cir.2007). The Sloss court was careful to note in its opinion that the defendant in that case had been “served with process [and] did not timely appear or respond to [the plaintiffs] complaint.” Id. Thus the facts in Sloss are indistinguishable from the facts in this case. See also Harper Macleod Solicitors v. Keaty & Keaty, 260 F.3d 389, 393 (5th Cir.2001) (“It is well-established that defendants need not appear in a federal court without authority to exercise personal jurisdiction over them to raise a jurisdictional defect. Defendants are ‘always free to ignore ... judicial proceedings, risk a default judgment, [and] then challenge the judgment on jurisdictional grounds in a collateral proceeding.’ ” (quoting Ins. Corp. of Ir. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 706, 102 S.Ct. 2099, 72 L.Ed.2d 492 (1982))); Hugel v. McNell, 886 F.2d 1, 3 n. 3 (1st Cir.1989) (holding that the defendants did not waive the defense of lack of personal jurisdiction by failure to raise it in responsive pleading where the defendants first raised the issue of lack of personal jurisdiction in a motion to vacate a judgment); Williams v. Life Sav. & Loan, 802 F.2d 1200, 1202 (10th Cir.1986) (“Defects in personal jurisdiction ... are not waived by default when a party fails to appear or respond.”). Undoubtedly, the weight of federal authority supports Mr. Wiggins’ position on the waiver issue. See generally 5C Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure Civil § 1391 (3d ed. 2014) (discussing the waiver of certain defenses under Federal Rule of Civil Procedure 12(h)(1)).

Our independent research has located only a few state cases on point, but these cases also support Mr. Wiggins’ position on the waiver issue. In Crouch v. Crouch, 641 S.W.2d 86, 90 (Mo.1982) (en banc), the Supreme Court of Missouri said:

Absent contacts with Missouri that satisfy the long-arm provision of Rule 54.06(b), the due process limitations on state power to assert jurisdiction over nonresident defendants, see World-Wide Volkswagen [v. Woodson, 444 U.S. 286, 291-94 (1980)], compel the conclusion that a defendant over whom the trial court could not otherwise constitutionally acquire jurisdiction does not waive the jurisdictional defense merely by his nonappearance. Two fundamental precepts must be borne in mind. First, a personal judgment rendered by a court without personal jurisdiction over the defendant is void and may be attacked collaterally. Ray v. Ray, 330 Mo. 530, 536, 50 S.W.2d 142, 143 (1932); Adams v. Cowles, 95 Mo. 501, 507, 8 S.W. 711, 714 (1888). See Gaffney v. Gaffney, 528 S.W.2d 738, 742 [ (Mo.1975) (en banc) ]. Second, a defendant “is always free to ignore the judicial proceedings, risk a default judgment and then challenge that judgment on jurisdictional grounds in a collateral proceeding.” Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 102 S.Ct. 2099, 2106, 73[72] L.Ed.2d 492 (1982).

See also Architectural Woodcraft Co. v. Read, 464 A.2d 210, 212 (Me.1983) (“Where ... a defendant has not appeared in an action and where due process issues are generated by the exercise of personal jurisdiction over him, the defense of lack of personal jurisdiction is not waived.”); I.S.H. v. M.D.B., 83 Mass.App.Ct. 553, 987 N.E.2d 223, 229-30 (2013) (holding that a father’s failure to appear before the entry of a paternity judgment did not waive the defense of lack of personal jurisdiction).

In this case, Mr. Wiggins does not deny that he was properly served with process. Undeniably, he “sat on his rights” for more than a year instead of filing a timely motion challenging the circuit court’s personal jurisdiction. But Mr. Wiggins has made a challenge to the very validity of the judgment. Due process requires that the circuit court must have first acquired jurisdiction of Mr. Wiggins before it could contemplate entering an in personam judgment against him. Based on the authorities discussed above, we conclude that Mr. Wiggins did not waive the right to challenge the default judgment by failing to challenge the circuit court’s jurisdiction of him for fifteen months after he was served with process.

B. Long-Arm Statute/Personal Jurisdiction

Having determined the question of waiver in Mr. Wiggins’ favor, we turn now to the question of whether the default judgment is void because the circuit court lacked personal jurisdiction over him under the long-arm statute. “Because this case arises from a motion to dismiss for lack of personal jurisdiction, we derive the facts from the affidavits in support of the motion to dismiss, and the transcripts and records submitted in opposition to the motion to dismiss.” Wendt, 822 So.2d at 1254.

1. Sufficiency of the complaint

The long-arm statute, section 48.193, Florida Statutes (2011), provides, in pertinent part, as follows:

(1) Any person, whether or not a citizen or resident of this state, who personally or through an agent does any of the acts enumerated in this subsection thereby submits himself or herself and, if he or she is a natural person, his or her personal representative to the jurisdiction of the courts of this state for any cause of action arising from the doing of any of the following acts:
(b) Committing a tortious act within this state.
(2) A defendant who is engaged in substantial and not isolated activity within this state, whether such activity is wholly interstate, intrastate, or otherwise, is subject to the jurisdiction of the courts of this state, whether or not the claim arises from that activity.

In determining whether it may exercise personal jurisdiction over a nonresident of Florida, a trial court, upon proper motion, must make two inquiries. “‘First, it must be determined that the complaint alleges sufficient jursidictional facts to bring the action within the ambit of the statute; and if it does, the next inquiry is whether sufficient ‘minimum contacts’ are demonstrated to satisfy due process requirements.’ ” Borden v. East-European Ins. Co., 921 So.2d 587, 592 (Fla.2006) (quoting Venetian Salami Co. v. Parthenais, 554 So.2d 499, 502 (Fla.1989)). “A judgment rendered in violation of due process is void in the rendering State and is not entitled to full faith and credit elsewhere.” World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980) (citing Pennoyer v. Neff, 95 U.S. 714, 732-33, 24 L.Ed. 565 (1877)).

In this case, Tigrent alleged in its complaint that Mr. Wiggins had submitted to jurisdiction in Florida because he “(a) [c]ommitted a tortuous [sic] act within the State of Florida as more particularly described herein, and/or (b) [e]ngaged in substantial and not isolated activities in the State of Florida.” Tigrent also alleged that Mr. Wiggins diverted funds from a specific holding account, the assets of which were the property of Tigrent, intentionally withheld those funds despite Ti-grent’s demands, and used those funds to offset a corporate liability of WCC. Here, Tigrent’s complaint alleges that Mr. Wiggins committed a tort in Florida and alleges that he engaged in substantial and not isolated activity. Accordingly, the allegations of the complaint are sufficient to invoke the long-arm statute.

2. Minimum Contacts

Florida courts may exercise personal jurisdiction of a nonresident defendant only if there are sufficient minimum contacts between the defendant and the state such that maintaining the action in Florida does not offend traditional notions of fair play and substantial justice. See Int’l Shoe Co. v. State of Wash., Office of Unemployment Comp. & Placement, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945). “Personal jurisdiction can be either general or specific, depending upon the nature of the contacts that the defendant has with the forum state.” Bird v. Parsons, 289 F.3d 865, 873 (6th Cir.2002).

a. General Jurisdiction

A plaintiff establishes general jurisdiction by showing that the defendant engaged in substantial and not isolated activity in Florida, pursuant to section 48. 193(2). General personal jurisdiction under the long-arm statute arises when the defendant engages in substantial and not isolated activities in Florida and arises from a party’s contacts in Florida that are unrelated to the litigation. Canale v. Rubin, 20 So.3d 463, 466 (Fla. 2d DCA 2009). “ ‘Substantial and not isolated activity' is that which is ‘continuous and systematic.’ ” Two Worlds United v. Zylstra, 46 So.3d 1175, 1178 (Fla. 2d DCA 2010) (quoting Bafitis v. Ara, 815 So.2d 702, 703 (Fla. 3d DCA 2002)). ‘“[I]f the defendant’s activities meet the requirements of this section, the due process requirement of minimum contacts is fulfilled.’ ” Schwartzberg, 98 So.3d at 178 (quoting Camp Illahee Investors, Inc. v. Blackman, 870 So.2d 80, 85 (Fla. 2d DCA 2003)).

In this case, Mr. Wiggins’ affidavit established that he was not personally operating, conducting, engaging in, or carrying on a business venture in this state. In addition, Mr. Wiggins had not even been present in the state except for a three-day convention some years before the events at issue. Neither the complaint nor the allegations in Tigrent’s counter-affidavit refute these claims. Indeed, there is nothing in the complaint, the affidavits, or the record that would suggest that Mr. Wiggins, individually, engaged in substantial and not isolated activity in Florida such that general jurisdiction under section 48. 193(2) would apply. Although a general jurisdictional analysis may apply to WCC, it clearly does not as to Mr. Wiggins. Thus, in the absence of general jurisdiction, our only inquiry is whether Mr. Wiggins is subject to specific personal jurisdiction in Florida under section 48.193(l)(b).

b. Specific Jurisdiction

That the injury must occur in Florida, although obviously a fundamental requirement of personal jurisdiction, is not, standing alone, determinative of specific personal jurisdiction under section 48. 193(l)(b). “[T]he plaintiff must still establish that the nonresident defendant has sufficient minimum contacts with the State of Florida to satisfy due process of law.” Schwartzberg, 98 So.3d at 177 (citing Int’l Shoe, 326 U.S. at 316, 66 S.Ct. 154); see also Wendt, 822 So.2d at 1257 (“[W]e distinguish the question of whether communications into Florida can constitute ‘committing a tortious act’ for the purposes of Florida’s long-arm statute from the question of whether those acts may satisfy the minimum contacts required to comply with the constitutional prong of Venetian Salami”).

In determining whether personal jurisdiction over a nonresident defendant is proper, our due process analysis proceeds on a case-by-case basis. See Allerton v. State Dep’t of Ins., 635 So.2d 36, 40 (Fla. 1st DCA 1994) (“ ‘[T]he facts of each case must always be weighed’ in determining whether personal jurisdiction would comport with ‘fair play and substantial justice.’ ” (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 485-86, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985))). The specific inquiry is whether the nonresident defendant should reasonably have anticipated being haled into court in Florida. Venetian Salami, 554 So.2d at 500.

Section 48.193(l)(b) provides that a nonresident subjects himself to the personal jurisdiction of a Florida court by “committing a tortious act within this state.” Thus, in order to assert specific personal jurisdiction over a nonresident defendant, the plaintiff must allege sufficient facts to prove that the defendant committed a tortious act in Florida. However, our supreme court has held that “in order to ‘commit a tortious act’ in Florida, a defendant’s physical presence is not required.” Wendt, 822 So.2d at 1260. Examining the cases where this.rule is applied, we discover that in virtually all of them, the finding that personal jurisdiction exists against a nonresident defendant who commits a tort outside of Florida involves some sort of communication directed into Florida for the purpose of fraud, slander, or other intentional tort. For example, Wendt involved securities fraud accomplished via telephonic, electronic, or written communications into Florida. Id. at 1258. Similarly, Execu-Tech Business Systems, Inc. v. New Oji Paper Co., 752 So.2d 582 (Fla.2000), involved a class action against a Japanese company for price fixing with regard to its product sold widely in Florida. And in Acquadro v. Bergeron, 851 So.2d 665 (Fla.2003), the defendants made defamatory statements during telephone conversations with persons in Florida that resulted in the false arrest and malicious prosecution of the plaintiffs. And most recently, in Internet Solutions Corp. v. Marshall, 39 So.3d 1201 (Fla. 2010), defamatory statements posted on a website in Washington State subjected the poster (who was also the owner and operator of the website) to personal jurisdiction in Florida under section 48.193(l)(b).

In contrast, in Kountze v. Kountze, 996 So.2d 246, 252 (Fla. 2d DCA 2008), the act of recording a phone call in another state during a conversation with a resident in Florida — a violation of a Florida Statute— did not constitute a tortious act committed in Florida for the purpose of long arm jurisdiction because the act did not occur in Florida and it was not illegal in the state where the recording was made. And in two cases involving claims for conversion — similar to the claim Tigrent asserted against Mr. Wiggins in this case — personal jurisdiction was not found based on conversion of funds that originated in Florida and were the property of a plaintiff in Florida. In both of these cases, the tort of conversion was held to have occurred in the state where wrongful dominion and control over the property occurred. See Ernie Passeos, Inc. v. O’Halloran, 855 So.2d 106,109 (Fla. 2d DCA 2003) (holding that an alleged conversion occurred — if at all — in Ohio, where the defendant received certain goods, and where the original transfer of the goods to Ohio from Florida was lawful at the time the goods were transferred); Merkin v. PCA Health Plans of Fla., Inc., 855 So.2d 137, 141 (Fla. 3d DCA 2003) (holding that the plaintiff did not satisfy the requirements for personal jurisdiction for conversion under Florida’s long-arm statute because the alleged tort of conversion occurred in California, where the defendant “exercised wrongful dominion and control over Huma-na’s funds”).

The critical factor in deciding whether a tort committed out of state may subject the tortfeasor to personal jurisdiction in Florida is whether the cause of action arose from the act in question. In Wendt, for example, the cause of action — securities fraud — arose from communications directed into Florida to prospective investors. This connection between the act and the forum state has been called “connexity.” See Wendt, 822 So.2d at 1260 (“ ‘[Cjommitting a tortious act’ in Florida under section 48.193(l)(b) can occur through the nonresident defendant’s telephonic, electronic, or written communications into Florida. However, the cause of action must arise from the communications. This predicate finding is necessary because of the connexity requirement contained in section 48.193(1).”). Cases involving torts such as defamation, libel, and slander are especially amenable to this analysis because such torts are generally considered to occur in the state where the tortious statements are published or directed. See Casita, L.P. v. Maplewood Equity Partners L.P., 960 So.2d 854, 857 (Fla. 3d DCA 2007) (“Under Florida law, the tort of defamation is committed in the place where it is published.”); Achievers Unlimited, Inc. v. Nutri Herb, Inc., 710 So.2d 716, 719 (Fla. 4th DCA 1998) (holding that the making of defamatory statements to a listener in Florida via telephone constitutes the commission of a tort in Florida within the meaning of section 48.193(l)(b)); cf. PK Computers, Inc. v. Indep. Travel Agencies of Am., Inc., 656 So.2d 254, 255 (Fla. 4th DCA 1995) (holding that a complaint alleging fraud, tor-tious interference, and slander failed to meet the requirements of Florida’s long-arm statute because it did not state that the allegedly tortious statements were made in Florida or were directed at listeners who were located in Florida).

By comparison, in this case, the cause of action — conversion—arose from the alleged withdrawal of funds from a designated account in a bank in Delaware. Thus, the alleged tort did not occur in Florida; it either occurred in Delaware, or more likely in line with current ease law, in Washington State, which is the location where WCC allegedly gained dominion and control over the funds. Ernie Passeos, 855 So.2d at 109; Merkin, 855 So.2d at 141. Accordingly, we conclude that the tort alleged did not occur in Florida and had no connexity with this state. Therefore, Tigrent did not satisfy the requirements for personal jurisdiction over Mr. Wiggins under Florida’s long-arm statute.

Finally, although a nonresident corporate officer committing fraud or other intentional tort in his individual capacity may be subject to personal jurisdiction in Florida, see Kitroser v. Hurt, 85 So.3d 1084, 1088 n. 3 (Fla.2012); Doe v. Thompson, 620 So.2d 1004, 1006 n. 1 (Fla.1993), it is well settled that the acts of a corporate employee performed in a corporate capacity do not form the basis for personal jurisdiction over that employee, Thompson, 620 So.2d at 1006. See also Kennedy v. Reed, 533 So.2d 1200, 1202 (Fla. 2d DCA 1988) (“[J]urisdiction will not lie over an individual because of acts performed in his capacity as agent for another.”); Bloom v. A.H. Pond Co., 519 F.Supp. 1162, 1170-71 (S.D.Fla.1981) (“[Ujnless the agents transact business on their own account and not on behalf of the corporation, the agents are not engaged in business so as to sustain an application of the long-arm statute to them as individuals.”).

Here, Tigrent has not shown that any of Mr. Wiggins’ alleged actions were performed in his personal capacity and not in his capacity as a corporate officer on behalf of WCC. Of course, we express no opinion on Mr. Wiggins’ liability for his role — whatever it may have been — in the alleged conversion. We decide only that the circuit court did not have personal jurisdiction over him.

VI. CONCLUSION

To summarize, Mr. Wiggins did not waive his right to challenge the circuit court’s personal jurisdiction over him by waiting to file his motion to vacate until after the circuit court entered a final judgment against him. In addition, the circuit court lacked personal jurisdiction over Mr. Wiggins; thus the judgment against him was void. It follows that the circuit court erred in failing to vacate the final judgment as to Mr. Wiggins and to dismiss the action as to him.

Accordingly, we reverse the order denying the motion to vacate the default final judgment and to dismiss the complaint. On remand, the circuit court shall enter an order vacating the default final judgment as to Mr. Wiggins and dismissing the action as to him. Our decision does not affect the judgment as it relates to WCC.

Reversed and remanded.

SILBERMAN and BLACK, JJ., Concur.

      . WCC did not move to vacate the judgment against it.

      . Mr. Wiggins took a risk by waiting to raise his challenge to personal jurisdiction in Florida for more than one year. If he lost the collateral attack on jurisdictional grounds, then he would have been unable to contest the default judgment on the merits. Arguably, it would be more prudent for a defendant similarly situated to timely raise his or her challenge to personal jurisdiction in the court where the action is pending so that he or she could defend the case on the merits in the event of an adverse ruling on the jurisdictional issue. Similarly, Tigrent took a risk by choosing to sue Mr. Wiggins in Florida, thereby courting the danger that it would be precluded from filing a timely action against him in Washington, where personal jurisdiction was more likely to be found. Of course, these are the kinds of strategic decisions that trial counsel are regularly called upon to make.


author: SCALES, J.

text:
    Victoria MOSSUCCO, etc., et al., Appellants, v. AVENTURA TENNIS, LLC, INC., Appellee.
    No. 3D13-968.
    District Court of Appeal of Florida, Third District.
    July 30, 2014.
    Rehearing Denied Aug. 14, 2014.

      Mark E. Buechele, for appellants.
    Kluger, Kaplan, Silverman, Katzen & Levine, P.L., and Jeffery M. Berman, for appellee.
    Before ROTHENBERG, FERNANDEZ, and SCALES, JJ.
   SCALES, J.

Appellants Victoria Mossucco (Mossuc-co) and Fabio Gonzalez (Gonzalez) (collectively, Appellants), Defendants below, seek review of an order denying their motion to seek damages against an injunction bond posted by Appellee, Aventura Tennis, LLC (Aventura Tennis), Plaintiff below. We affirm because, under the facts of this case, Aventura Tennis’ voluntary dismissal of its lawsuit did not result in an automatic determination that Appellants had been wrongfully enjoined.

I. Factual Background

Aventura Tennis was a retailer of tennis racquets, apparel, and accessories that previously operated a store in Aventura, Florida. As employees of Aventura Tennis, Appellants each executed a non-compete agreement, agreeing not to work for a competing business while employed at Aventura Tennis and for one year thereafter. The non-compete agreements contained provisions that entitled Aventura Tennis to seek injunctions to enforce such restrictions.

Mossucco resigned from Aventura Tennis on October 13, 2010, and Gonzalez tendered his resignation on December 17, 2010.

Aventura Tennis contends that in March 2011, Appellants opened a tennis kiosk on behalf of, or for the benefit of, a direct competitor of Aventura Tennis (the Kiosk). On May 5, 2011, Aventura Tennis filed a complaint seeking damages and injunctive relief against Appellants for their alleged violations of the non-compete agreements. Appellants filed a motion to dismiss, however they did not pursue the motion and never obtained a ruling on it. Appellants never filed an answer to Aventura Tennis’ complaint.

On June 15, 2011, Aventura Tennis filed a motion in the case for temporary injunc-tive relief, seeking to enjoin Appellants from operating the Kiosk. The trial court held an evidentiary hearing and, on July 12, 2011, entered an order temporarily enjoining Appellants from working at the Kiosk until October 13, 2011, for Mossucco, and December 17, 2011, for Gonzalez. As a condition of the temporary injunctions, Aventura Tennis posted a bond in the amount of $82,800 (the Bond). The Bond stated: “[I]f it is later established that the order was improperly entered, Aventura Tennis, LLC shall pay all costs and damages defendants sustain in consequence of the order having been improperly entered.”

Appellants never sought to dissolve the injunctions pursuant to Florida Rule of Civil Procedure 1.610(d). Nor did Appellants seek immediate review of the temporary injunctions pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(B).

The temporary injunctions expired by their own terms on October 13, 2011, for Mossucco, and on December 17, 2011, for Gonzalez. On November 29, 2012, Aventu-ra Tennis unilaterally filed a notice of voluntary dismissal of its action pursuant to Florida Rule of Civil Procedure 1.420(a)(1).

On December 28, 2012, Appellants filed a “Motion for Proceedings Against Injunction Bond, to Establish Entitlement to Injunction Damages, Attorney’s Fees and Costs; and to Schedule Evidentiary Hearing” (Motion Against Bond). In the motion, Appellants sought damages and attorney fees and costs from the Bond. Appellants requested a determination that the temporary injunctions were wrongfully obtained. Appellants argued that the voluntary dismissal filed by Aventura Tennis in November 2012 automatically constituted a determination that they had been wrongfully enjoined and entitled them to recover damages against the Bond. Appellants also requested an evi-dentiary hearing to determine the amount of damages to which they were entitled.

On February 14, 2013, the trial court held a hearing on Appellants’ Motion Against Bond. During the hearing, Appellants claimed they were entitled to damages from the Bond because “[wjhen you voluntarily dismiss it is considered to be— the injunction is considered to have been wrongful and the defendants are entitled to proceed against the bond.” Appellants advanced no other arguments that the temporary injunctions were wrongfully issued. On March 11, 2013, the trial court entered an order which, among other things not germane to this appeal, denied Appellants’ request to proceed against the Bond.

II. Analysis

The question we are presented with is whether, after a temporary injunction has long since expired by its own terms, a plaintiffs voluntary dismissal of its complaint without prejudice should be treated as an automatic determination that the defendant was “wrongfully enjoined” within the meaning of Rule 1.610(b), Florida Rules of Civil Procedure.

We hold that, given the unique facts and procedural posture of this case, Aventura Tennis’ voluntary dismissal of its complaint did not constitute an automatic determination that Appellants had been “wrongfully enjoined” so as to entitle them to damages against the Bond.

The standard of review is de novo because there are no disputed facts and the trial court’s conclusions are purely legal. City of Hollywood v. Petrosino, 864 So.2d 1175, 1176 (Fla. 4th DCA 2004).

i. Recovering Against an Injunction Bond

Pursuant to Florida Rule of Civil Procedure 1.610(b), “[n]o temporary injunction shall be entered unless a bond is given by the movant in an amount the court deems proper.” The purpose of an injunction bond is to provide sufficient funds to cover the adverse party’s costs and damages if the injunction was wrongfully issued. Bieda v. Bieda, 42 So.3d 859, 862 (Fla. 3d DCA 2010). Whether the enjoined party is entitled to recover on the bond is solely determined by whether the adverse party was “wrongfully enjoined.” See Fla. R. Civ. P. 1.610(b) (stating bond condition is payment of costs and damages of adverse party who is “wrongfully enjoined”); see, e.g., Shea v. Cent. Diagnostic Servs., Inc., 552 So.2d 344, 346 (Fla. 5th DCA 1989) (“An aggrieved party is entitled to damages resulting from the wrongful issuance of an injunction.”); see e.g., Dep’t of Health & Rehab. Servs. v. G & J Invs. Corp., 541 So.2d 1197, 1200 n. 2 (Fla. 3d DCA 1988) (“To sustain an action for damages it must be made to appear that such an injunction was wrongful in its inception, or at least continued owing to some wrong on the part of plaintiff.”) (citation omitted).

“The standard for determining whether an injunction was wrongfully issued is simply whether the petitioning party was unentitled to injunctive relief.” Parker Tampa Two, Inc. v. Somerset Dev. Corp., 544 So.2d 1018, 1021-22 (Fla.1989); see also Biscayne Park, LLC v. Wal-Mart Stores E., LP, 34 So.3d 24, 26 (Fla. 3d DCA 2010).

ii. Lorie and Effect of Voluntary Dismissal by Plaintiff

Appellants rely on Lorie v. C.L.N., 757 So.2d 610 (Fla. 3d DCA 2000), to support their proposed per se rule of law that a voluntary dismissal without prejudice of an action seeking an injunction automatically constitutes an adjudication that the adverse party was “wrongfully enjoined.” We cannot agree.

In Lorie, the plaintiffs obtained a temporary injunction and posted a bond. Id. at 611. Following this court’s affirmance of an appeal by the defendants challenging the propriety of the temporary injunction, and while the injunction was still in effect, the plaintiffs filed a voluntary dismissal of their suit. Id. Thereafter, the defendants moved for dissolution of the temporary injunction and for distribution to them of the bond proceeds. Id. The plaintiffs, on the other hand, moved to recover the bond contending that no adjudication on the merits had resulted from the voluntary dismissal. . The trial court agreed with the plaintiffs’ additional argument that the pri- or affirmance on appeal of the temporary injunction meant that the injunctions were not “wrongfully” obtained. Id. The trial court discharged the bond proceeds to the plaintiffs. Id.

Relying on the “general rule” that a voluntary dismissal by the plaintiff “warrant[s] a right of action upon [the bond],” this court reversed and remanded the cause for a hearing on the defendant’s entitlement to damages. Id. at 612.

Contrary to Appellants’ contention, Lorie, did not explicitly hold that, in all cases in which a temporary injunction is sought and obtained, a voluntary dismissal without prejudice automatically constitutes an adjudication that the injunction was wrongfully entered. Cf. Rice v. White, 147 So.2d 204, 206-07 (Fla. 1st DCA 1962) (“[A] dissolution of an injunction upon the merits operates as an adjudication that it was improperly issued.” (quoting Nat’l Surety Co. v. Willys-Overland, Inc., 103 Fla. 738, 138 So. 24, 25 (1931) (emphasis added))).

We hold that a plaintiff’s voluntary dismissal of its suit without prejudice after it has sought and received a temporary injunction can, but does not automatically, constitute an adjudication that the adverse party was “wrongfully enjoined.” However, where, as here, the notice of voluntary dismissal was not filed until a year after the temporary injunctions expired by their own terms, and, where the enjoined parties took no action to challenge the propriety of the temporary injunctions until a year-and-a-half after they were entered, and nearly a year after they expired, the enjoined parties still had to prove that the injunctions were “wrongfully entered” to succeed in an action for damages against the bond.

III. Conclusion

In sum, we certainly do not foreclose the possibility that, in certain circumstances not present here, a plaintiff’s voluntary dismissal of its complaint may be treated as an adjudication that the injunction was “wrongfully entered.” See, e.g., U.S.D.I.D. Corp. v. Windstream Commc’ns, Inc., 916 F.Supp.2d 501, 514 (S.D.N.Y. 2013) (concluding the plaintiff’s “voluntary dismissal should be treated as a final adjudication on the merits justifying a finding that [the defendant] was ‘wrongfully’ restrained by the TRO” where “all of the relevant factors support the conclusion that [the plaintiff] dismissed its suit ‘on the basis of a belief that [it would] lose on the merits.’ ”) (citations omitted).

Moreover, our holding does not necessarily require an enjoined party to challenge the validity of an injunction before a plaintiff files a notice of voluntary dismissal, or before a temporary injunction expires by its own terms, in order to succeed in an action for damages against a bond.

Rather, in determining whether a voluntary dismissal constitutes an adjudication that the enjoined party was “wrongfully enjoined,” the trial court should consider the totality of the circumstances on a case-by-case basis. See, e.g., LaSalle Capital Group, Inc. v. Alexander Doll Co., No. 95C1640, 1995 WL 584429 (N.D.Ill. Oct. 2, 1995) (holding that determinations should be made on a case-by-case basis).

In the instant case, it was never established that Appellants were “wrongfully enjoined.” Indeed, in their Motion Against Bond, the enjoined parties simply advanced the legal position that the voluntary dismissal of the plaintiffs case in which the temporary injunctions were entered was enough to establish they were “wrongfully enjoined.”

On the facts of this case, we find no error in the trial court’s conclusion that the mere filing of the voluntary dismissal — long after the temporary injunctions were entered, and long after they expired by their own terms — was not sufficient to establish the wrongfulness of the temporary injunctions.

Affirmed.

      . This court cited 91 A.L.R.2d 1312 § 2, which noted:

        As a general rule, the voluntary dismissal of a suit by the plaintiff, after obtaining an interlocutory injunction and giving a bond, when made without the consent of the defendant, is determinative of the controversy and is such a breach of the condition of the bond as to warrant a right of action upon it....

        Lorie, 757 So.2d at 611-12 (emphasis added).

      . In fact, while not entirely clear from the opinion, it appears the trial court in Lorie treated the plaintiffs’ voluntary dismissal of their action as "automatically requiring] the return of an injunction bond to a plaintiff.” Lorie, LSI So.2d at 611.

      . See G & J Invs. Corp., 541 So.2d at 1200 n. 2 ("The existence of the voluntary dismissal does not ‘prove’ that the acts taken by [the plaintiff] were wrongful _"); see Ayer v. Gen. Dynamics Corp., 128 Ariz. 324, 625 P.2d 913, 914-15 (App.1980) (holding that the plaintiff's voluntary dismissal of its complaint seeking injunctive relief was not conclusive and the defendant still "had to prove that the injunction was wrongfully issued"); see also U.S. D.I.D. Corp. v. Windstream Commc’ns, Inc., 916 F.Supp.2d 501, 512 (S.D.N.Y.2013) (“[T]he [cjourt holds that a plaintiff’s voluntary dismissal of its suit ... after it has sought and received a TRO or a preliminary injunction can constitute a final adjudication on the merits that 'the injunction should not have issued in the first instance.' The determination of whether such a dismissal should be treated as a final adjudication on the merits for such purposes, however, 'must be made on a case by case basis’ in light of the totality of the circumstances.”) (citations omitted); cf. Oakwood Manor, Inc. v. Eck, 358 So.2d 585, 587 (Fla. 2d DCA 1978) ("Admittedly, the dismissal for failure to amend constituted an adjudication of the suit on the merits ... but this does not necessarily mean that the temporary injunction was improperly issued in the first place.... 'To sustain an action for damages it must be made to appear that such injunction was wrongful in its inception, or at least was continued owing to some wrong on the part of the plaintiff.' ") (citations omitted).

      . Unlike the defendants in Lorie, Appellants in the instant case did not initiate any action to prove they were "wrongfully enjoined.” The Lorie defendants challenged the propriety of the temporary injunction on three separate occasions by: (1) appealing the initial grant of the temporary injunction; (2) moving to dissolve the temporary injunction after the plaintiffs voluntarily dismissed the case; and (3) appealing the trial court’s finding that the injunction was properly entered. Here, Appellants did not file any motion to dissolve the temporary injunctions, nor did Appellants seek appellate review of the temporary injunctions. Significantly, in their Motion Against Bond, which was filed nearly a year-and-a-half after the temporary injunctions were entered, and nearly a year after they expired by their own terms, Appellants did not request an opportunity to prove they were "wrongfully enjoined;" instead, Appellants simply requested an automatic determination by the trial court that the temporary injunctions were "wrongful” based on the plaintiff's voluntary dismissal of its lawsuit.


author: CRENSHAW, Judge.

text:
    Frederick MITCHELL, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-572.
    District Court of Appeal of Florida, Second District.
    July 30, 2014.

      Howard L. Dimmig, II, Public Defender, and John C. Fisher, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Ap-pellee.
   CRENSHAW, Judge.

Frederick Mitchell was convicted of aggravated assault with a deadly weapon and false imprisonment and sentenced to concurrent sentences of nineteen months’ prison. We affirm the convictions without comment. Because Mitchell could not produce evidence of the Department of Correction’s (DOC) inability to treat his physical condition, his request for a downward departure pursuant to section 921.0026(2)(d), Florida Statutes (2012), was denied. This was error, and we reverse and remand for resentencing.

In order to receive a downward departure sentence in cases in which “the defendant requires specialized treatment for ... a physical disability,” Florida case-law had required a defendant to establish that he “required specialized treatment [which is] unavailable in the DOC.” State v. Chubbuck, 141 So.3d 1163, 1164 (Fla. 2014) (citing § 921.0026). However, the supreme court has now held, as relevant here, that a defendant need only establish “the following three elements by a preponderance of the evidence: (1) the defendant has ... a physical disability; (2) which requires specialized treatment; and (3) the defendant is amenable to such treatment.” Id. at 1171 (footnote omitted). “Evidence which demonstrates that the DOC can so provide [specialized treatment] is one factor for the trial court’s consideration in deciding whether to give a downward departure sentence.” Id. In this case, the circuit court ruled that it lacked a legal basis to downward depart solely because of Mitchell’s failure to establish that DOC could not provide him with the treatment he needs. But this, we now know, is not the inquiry. Rather, Mitchell must merely prove, by a preponderance of the evidence, that he has a physical disability (which has not been disputed), that he needs specialized treatment (which is also undisputed), and that he is amenable to that treatment. If he does so, the court can legally entertain Mitchell’s downward departure motion. In so doing, it is free to consider, as one factor, whether DOC can provide the necessary treatment. Mitchell’s failure to do so is not dispositive and, of course, the State may also provide evidence on this point. Accordingly, upon remand, Mitchell is entitled to a new sentencing hearing in light of Chubbuck and consistent with this opinion.

Convictions affirmed, sentence reversed and remanded.

VILLANTI, J., and DAKAN, STEPHEN L., Associate Senior Judge, Concur.


author: WALLIS, J.

text:
    Chase BURNS, Kristin Burns, et al., Appellants, v. STATE of Florida, DEPARTMENT OF LEGAL AFFAIRS, Appellee.
    No. 5D13-1724.
    District Court of Appeal of Florida, Fifth District.
    Aug. 1, 2014.
    Rehearing Denied Sept. 2, 2014.

      Robert A. Leventhal, of Robert Leven-thal, P.A., Orlando, and Jack LeDrew Ne-ville, Jr., and Michael L. Brooks of Hart-zog Conger Cason & Neville, Pro Hac Vice, Oklahoma City, OK, for Appellants.
    Pamela Jo Bondi, Attorney General, Tallahassee and Kenneth V. Wilson, Assistant Attorney General, Tampa, for Appellee, State of Florida.
   WALLIS, J.

Chase Burns, Kristin Burns, International Internet Technologies, LLC, TN Yacht Charters, LLC, Burns Family Cattle, LLC, Burns Family Land Co., LLC, Prestige Gaming, LLC, and Give It Away Foundation (collectively “Appellants”) challenge a non-final order: (1) finding probable cause that their out-of-state bank accounts and out-of-county cars are contraband in violation of the Florida Contraband Forfeiture Act (“FCFA”) and (2) denying their motion for return of the seized property. Appellants argue the trial court lacked in rem jurisdiction over the bank accounts and the automobiles. We agree and, therefore, vacate the probable-cause order and remand for the trial court to grant Appellants’ motion for return of property. Appellants also filed a motion for fees and damages, which we grant, in part, and dismiss, in part.

In March 2013, the Seminole County Sheriff seized 23 bank, investment, and insurance accounts in other states, including New York, Oklahoma, Missouri, Iowa, and Indiana. None of the accounts were located in Florida. The Seminole County Sheriff also seized four automobiles: two in Volusia County, one in Pinellas County, and one in Duval County. Appellants requested an adversarial preliminary hearing pursuant to section 932.703(2)(a), Florida Statutes (2013). They sought return of their property, arguing that the Seminole County Sheriff did not have probable cause to seize the property and the trial court did not have in rem jurisdiction over the seized property. The trial court denied Appellants’ motion to return seized property.

"We review orders determining subject matter jurisdiction de novo, inasmuch as such an order generally resolves an issue of law.” Baker & Hostetler, LLP v. Swearingen, 998 So.2d 1158, 1161 (Fla. 5th DCA 2008) (citing Jacobsen v. Ross Stores, 882 So.2d 431 (Fla. 1st DCA 2004)). In Florida, forfeiture is an in rem proceeding. Ruth v. Dep’t of Legal Affairs, 684 So.2d 181, 185 (Fla.1996) (citations omitted). “To have subject matter jurisdiction in an in rem proceeding, a court must have both the jurisdictional authority to adjudicate the class of cases to which the case belongs and jurisdictional authority over the properly which is the subject matter of the controversy.” Id. (citations omitted). “Florida courts do not have in rem or quasi in rem jurisdiction over foreign property.” Sargeant v. Al-Saleh, 137 So.3d 432, 434 (Fla. 4th DCA 2014) (citations omitted); see also Paciocco v. Young, Stern & Tannenbaum, P.A, 481 So.2d 39 (Fla. 3d DCA 1985) (“A Florida trial court has no in rem jurisdiction over notes secured by mortgages on real property located in a foreign state, to wit: New York”). In this case, because the bank accounts are located in foreign jurisdictions, the trial court does not have jurisdiction over the property in the forfeiture proceeding.

We similarly conclude that the Seminole County Circuit Court did not have jurisdiction to authorize continued seizure of the automobiles seized in other counties. Section 30.15(1), Florida Statutes (2013), provides for a sheriff’s territorial authority, in pertinent part:

Sheriffs, in their respective counties, in person or by deputy, shall:
(b) Execute such other writs, processes, warrants, and other papers directed to them, as may come to their hands to be executed in their counties.
(e) Be conservators of the peace in their counties.
(g) Apprehend, without warrant, any person disturbing the peace, and carry that person before the proper judicial officer, that further proceedings may be had against him or her according to law. (j) Perform such other duties as may be imposed upon them by law.

(Emphasis added). Although there are exceptions allowing an officer to act outside of the territorial limits of his or her agency, none of them apply to this case. The Seminole County Sherriff cannot wrongfully seize personal property outside Seminole County and bring it within the county so the trial court can exercise in rem jurisdiction. The order finding probable cause and denying the return of the bank accounts and automobiles is vacated, and we remand for the trial court to grant the motion to return the property.

On appeal, Appellants also filed a motion requesting attorney’s fees and damages, arguing the Seminole County Sheriff did not proceed in good faith and that the conduct was a gross abuse of discretion because the Seminole County Circuit Court did not have in rem jurisdiction. Regarding fees, the FCFA provides:

The court shall award reasonable attorney’s fees and costs, up to a limit of $1,000, to the claimant at the close of the adversarial preliminary hearing if the court makes a finding of no probable cause. When the claimant prevails, at the close of forfeiture proceedings and any appeal, the court shall award reasonable trial attorney’s fees and costs to the claimant if the court finds that the seizing agency has not proceeded at any stage of the proceedings in good faith or that the seizing agency’s action which precipitated the forfeiture proceedings was a gross abuse of the agency’s discretion. The court may order the seizing agency to pay the awarded attorney’s fees and costs from the appropriate contraband forfeiture trust fund. Nothing in this subsection precludes any party from electing to seek attorney’s fees and costs under chapter 57 or other applicable law.

§ 932.704(10), Fla. Stat. (2013). As this court previously stated, “we think the obvious intent of the Legislature in passing [the FCFA] was to make claimants of wrongfully seized property whole, by requiring the seizing agency which brought a baseless forfeiture proceeding to compensate the owner of the property for reasonably expended attorney’s fees and costs necessary to regain the property seized.” Gay v. Beary, 758 So.2d 1242, 1244 (Fla. 5th DCA 2000). We grant Appellants’ motion as it pertains to appellate attorney’s fees and remand to the trial court to determine the amount. However, we dismiss without prejudice Appellants’ motion as it pertains to damages, for Appellants to seek damages pursuant to section 932.704, Florida Statutes (2013), in the trial court. Pondella Hall For Hire, Inc. v. Lamar, 866 So.2d 719, 724 (Fla. 5th DCA 2004) (determining that whether property was returned in a reasonable fashion was outside the scope of this court’s review and, therefore, reversing and remanding for further proceedings to determine whether damages are due).

REVERSED and REMANDED with instructions.

PALMER and COHEN, JJ., concur.

      . Our jurisdiction to consider this appeal is pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(C)(ii), which provides appellate jurisdiction over non-final orders determining "the right to immediate possession of property.” Although we recently held in Alascia v. State, Department of Legal Affairs, 135 So.3d 402, 405 (Fla. 5th DCA 2014), that we did not have jurisdiction under rule 9.130(a)(3) to review á non-final order finding probable cause to support the State's seizure of real properly, Alascia is distinguishable from this case. In Alascia the seizing agency had not yet seized the property; instead, the agency only sought a lis pendens, which is less restrictive than a physical seizure. Id. Thus, we held that the non-final order did not determine "the right to immediate possession of property." Here, however, the Seminole County Sherriff seized personal property before the adversarial preliminary hearing and the trial court denied the motion to return the property. Accordingly, we have jurisdiction under rule 9.130(a)(3)(C)(ii) and "may proceed to resolve the issues presented on the merits.” Eight Hundred, Inc. v. State, 781 So.2d 1187, 1190 (Fla. 5th DCA 2001) (reversing non-final order denying the corporations' request for return of their seized property); see also Dismuke v. Office of State Attorney, 948 So.2d 1039 (Fla. 5th DCA 2007) (treating, as the trial court did, a writ of replevin as a motion for return of property and finding the order as "an appealable interlocutory order because it determined the right to immediate possession of property").

      . E.g., Daniel v. State, 20 So.3d 1008, 1011-12 (Fla. 4th DCA 2009) (noting that two enforcement agencies may enter into a mutual aid agreement permitting extraterritorial conduct); Huebner v. State, 731 So.2d 40, 44-45 (Fla. 4th DCA 1999) (noting the fresh pursuit exception allows officers "who attempt to detain or arrest within their territorial jurisdiction, to continue to pursue a fleeing suspect even though the suspect crosses jurisdictional lines” (citation omitted)); State v. Phoenix, 428 So.2d 262, 265 (Fla. 4th DCA 1982) (noting police officers have a common-law right as citizens to make citizen’s arrests).

      . We find it noteworthy that Appellee neither addressed in the answer brief Appellants’ main argument that the trial court lacked in rem jurisdiction nor filed a response to Appellants’ motion for fees and damages.

      . Section 59.46, Florida Statutes, also provides: "In the absence of an expressed contrary intent, any provision of a statute ... providing for the payment of attorney’s fees to the prevailing party shall be construed to include the payment of attorney’s fees to the prevailing party on appeal.”


author: EMAS, J.

text:
    A.M., a juvenile, Petitioner, v. The STATE of Florida, et al., Respondents.
    No. 3D14-1259.
    District Court of Appeal of Florida, Third District.
    Aug. 6, 2014.

      Carlos J. Martinez, Public Defender, and Billie Jan Goldstein, Assistant Public Defender, for petitioner.
    Pamela Jo Bondi, Attorney General, and Keri T. Joseph, Assistant Attorney General, for respondents.
    Before SUAREZ, EMAS and SCALES, JJ.
   EMAS, J.

A.M., a juvenile, filed a petition for writ of habeas corpus, seeking release from custody and asserting that he is being unlawfully held in secure detention because his offense was improperly designated a violent third-degree felony. The question presented is whether the charge of robbery by sudden snatching is a violent third-degree felony or a non-violent third-degree felony for purposes of determining whether A.M. met the criteria for secure detention. For the reasons that follow, we hold that, under the facts of the instant case, the offense of robbery by sudden snatching should properly have been designated a non-violent third-degree felony.

A.M. was arrested on May 22, 2014, and charged with robbery by sudden snatching, a third-degree felony. The arrest report included the following factual narrative in support of the arrest:

[Victim] was walking in the park when the def. ran up behind him and snatched the cell phone which was in his hand. The def. fled from the park. [Witness] was with the def. when it happened and provided information on the def. and identified the def. from photograph. The def. was located at his residence and was arrested. Def. taken to the JAC [Juvenile Assessment Center] via [Police] Station 6.

A detention hearing was held the following day. At that detention hearing, the court is required to utilize the results of the Detention Risk Assessment Instrument (“Risk Assessment”) in determining the need for continued detention, or the appropriate conditions for release pending an adjudicatory hearing. See §§ 985.255(S)(a), 985.245(l)-(2), Florida Statutes (2014). The Risk Assessment is a point-based system which assigns points based upon, for example, the nature of the juvenile’s current offense and any prior or pending offenses. If the Risk Assessment results in a score of twelve points or more, a juvenile may continue to be held in secure detention.

Prior to the commencement of the hearing, the Department of Juvenile Justice (“the Department”) prepared the Risk Assessment, as provided by section 985.245, Florida Statutes (2014), and designated the robbery by sudden snatching as a violent third-degree felony which, together with A.M.’s other pending offenses, resulted in a qualifying score for secure detention. However, had the robbery by sudden snatching been designated a non-violent third-degree felony, A.M.’s score would not have qualified him for secure detention and would have resulted in his release on home detention.

In 1999, the Florida Legislature enacted section 812.131, Florida Statutes, entitled “Robbery by Sudden Snatching.” It provides in pertinent part as follows:

(1) “Robbery by sudden snatching” means the taking of money or other property from the victim’s person, with intent to permanently or temporarily deprive the victim or the owner of the money or other property, when, in the course of the taking, the victim was or became aware of the taking. In order to satisfy this definition, it is not necessary to show that:
(a) The offender used any amount of force beyond that effort necessary to obtain possession of the money or other property; or
(b) There was any resistance offered by the victim to the offender or that there was injury to the victim’s person.
(2)(a) If, in the course of committing a robbery by sudden snatching, the offender carried a firearm or other deadly weapon, the robbery by sudden snatching is a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(b) If, in the course of committing a robbery by sudden snatching, the offender carried no firearm or other deadly weapon, the robbery by sudden snatching is a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

§ 812.131, Fla. Stat. (2014).

The statute does not require that the offender use or threaten to use any force or violence in order to commit the crime of robbery by sudden snatching.' In fact, no force whatsoever is required “beyond that effort necessary to obtain possession of the money or other property.” The only elemental difference between a robbery by sudden snatching and a theft is that robbery by sudden snatching requires proof that “in the course of the taking, the victim was or became aware of the taking.” § 812.131(1). This can be further established by comparing the jury instructions for grand theft (Fla. Std. J. Instr. (Crim.) 14.1) and robbery by sudden snatching (Fla. Std. J. Instr. (Grim.) 15.4):

14.1 THEFT
§ 812.014, Fla. Stat.
To prove the crime of Theft, the State must prove the following two elements beyond a reasonable doubt:
1. (Defendant) knowingly and unlawfully [obtained or used] [endeavored to obtain or to use] the (property alleged) of (victim).
2. [He][She] did so with intent to, either temporarily or permanently,
a. [deprive (victim) of [his][her] right to the property or any benefit from it.]
b. [appropriate the property of (victim) to [his][her] own use or to the use of any person not entitled to it.]
15.4 ROBBERY BY SUDDEN SNATCHING
§ 812.181, Fla. Stat.
To prove the crime of Robbery by Sudden Snatching, the State must prove the following four elements beyond a reasonable doubt:
1. (Defendant) took the (money or property described in charge) from the person of (person alleged).
2. The property taken was of some value.
3. The taking was with the intent to permanently or temporarily deprive (victim) or the owner of [his][her] right to the property.
4. In the course of the taking, (victim) was or became aware of the taking.

It is the last element above that, for our purposes, differentiates theft from robbery by sudden snatching; a theft, accompanied by the victim’s contemporaneous awareness of the taking, makes the theft a robbery by sudden snatching. The robbery by sudden snatching jury instruction further provides:

It is not necessary for the State to prove that the defendant used any amount of force beyond that effort necessary to obtain possession of the money or other property, that there was any resistance offered by the victim or that there was any injury to the victim’s person.

Fla. Std. J. Instr. (Crim.) 15.4

Given the plain language of the statute, echoed in the provisions of the standard jury instructions, we conclude that robbery by sudden snatching is not, by its statutory elements, a violent third-degree felony and should not have been designated as such in the instant case when scoring A.M.’s offense under the Risk Assessment. See Thomas v. State, 983 So.2d 746 (Fla. 4th DCA 2008) (holding the use or threat of physical force or violence against an individual is not a statutory element of the crime of robbery by sudden snatching). See also T.K. v. State, 125 So.3d 970 (Fla. 4th DCA 2013)(holding that, given the plain language of the term “violent,” the crime of aggravated fleeing and eluding was not a violent second-degree felony for purposes of the Risk Assessment).

We have considered the case relied upon by Respondent, J.W. v. Leitner, 801 So.2d 295 (Fla. 2d DCA 2001). In J.W., the juvenile was confined in secure detention following his commitment and pending placement in a high-risk residential program. Such detention was authorized under section 985.215(10)(c), Florida Statutes (2001), and requires a score of twelve or more points on a risk assessment instrument. The risk assessment established that the juvenile was initially charged with robbery by sudden snatching, which was scored as nine points, clearly below the twelve-point minimum. The issue directly addressed in J.W. was not whether robbery by sudden snatching was properly scored as a violent third-degree felony, but whether the trial court could rely upon other information provided by the Department (but not authorized for consideration under the statute) in determining whether the juvenile met the criteria for secure detention. The Second District held that “a child awaiting placement in a high-risk residential program may not be held in secure detention unless they meet detention criteria” under section 985.215(10)(c).

In a footnote, the J.W. court did state that the offense of robbery by sudden snatching was correctly scored as a violent third-degree felony. Id. at 297 n. 1. However, this statement is not necessary to the holding in J.W. We consider it dicta and, based upon our analysis, respectfully disagree with our sister court’s conclusion in this regard. See Puryear v. State, 810 So.2d 901 (Fla.2002) (noting statements not necessary to the holding constitute dicta.)

We hold that, in light of the statutory elements of the crime, and the factual allegations in this case, the offense of robbery by sudden snatching should not have been scored as a violent third-degree felony. However, in light of petitioner’s release during the pendency of this cause, we dismiss the petition as moot.

      . It is unnecessary to address the other aspects of the Risk Assessment that were relied upon in ordering secure detention, because the dispositive question here is whether the instant offense should have been scored as a violent third-degree felony or a non-violent third-degree felony. The parties agree that if the robbery by sudden snatching was a violent third-degree felony, A.M. qualifies for secure detention; if it was a non-violent third-degree felony, A.M. would have been released on home detention.

        . Effective January 1, 2007 section 985.215(10)(c) was renumbered to section 985.27, Florida Statutes.

      . At a detention hearing, the court is required, in part, to determine "the existence of probable cause to believe the child has committed a delinquent act.” See Fla. R. Juv. P. 8.010(g). We need not and therefore do not decide whether a court could find a robbery by sudden snatching constitutes a "violent third-degree felony" where the factual allegations of the particular crime support a finding of probable cause that the juvenile in fact used or threatened to use force or violence. See T.K., 125 So.3d at 972 (considering both the statutory elements of the crime and the factual allegations of the particular crime in assessing whether it could be considered a "violent” offense for purposes of the Risk Assessment).

      . Because the petitioner was released from secure detention during the pendency of this cause, Respondent suggested we need not reach the merits of the petition. Nevertheless, we exercise our discretion to do so, since this issue has arisen in the past and is likely to recur. Holly v. Auld, 450 So.2d 217, 218 n. 1 (Fla.1984). Juvenile detention issues, such as the one raised here, are capable of repetition yet evading review, given their frequent resolution before the appellate court can complete its review and render a merits decision. CJ. v. Rolle, 608 So.2d 117 (Fla. 3d DCA 1992); J.L.B. v. Kelly, 93 So.3d 1137 (Fla. 2d DCA 2012); K.E. v. Dep't of Juvenile Justice, 963 So.2d 864 (Fla. 1st DCA 2007); T.T. v. Esteves, 828 So.2d 449 (Fla. 4th DCA 2002).


author: MAKAR, J. SWANSON, J.,

text:
    Charles and Virginia BARNES, Appellant, v. The DISTRICT BOARD OF TRUSTEES OF ST. JOHNS RIVER STATE COLLEGE, Florida, Appellee.
    No. 1D13-5067.
    District Court of Appeal of Florida, First District.
    Aug. 12, 2014.
    Rehearing Denied Sept. 23, 2014.

      Charles Lee Stambaugh of Stambaugh & Associates, P.A., Jacksonville, for Appellant.
    Lisa J. Augspurger and Maria D. Tors-ney of Bush & Augspurger, P.A., Orlando; Richard Burton Bush and Audra Michelle Bryant of Bush & Augspurger, P.A. Tallahassee, for Appellee.
   MAKAR, J.

A state college’s stormwater management system is the focus of this dispute. Charles and Virginia Barnes sued the District Board of Trustees of St. Johns River State College for damages to their property from water alleged to have overflown from a retention pond on the District’s campus. The trial court ruled the District was entitled to immunity under section 373.443, Florida Statutes. We affirm.

I.

The Barneses’ lakefront- home, constructed in 2000, is on Cedar Road, Orange Park, Florida. Nearby at a significantly higher elevation is St. Johns River Community College, owned and operated by the District, a legislatively-created entity. The College’s campus has seven retention ponds, each a part of the District’s stormwater management system, which is permitted by and under the regulatory oversight of the St. Johns River Water Management District. In the past and to the present, surface water naturally flows from the District’s uplands property toward the navigable water body known as Doctors Lake, on which the Barneses’ property is located, and then eventually into the St. Johns River.

On August 14, 2009, an exceptionally heavy seasonal rainfall caused a retention pond in a neighboring subdivision to overflow into one of the District’s retention ponds, Pond F, causing one of its retaining walls to breach, sending overflow waters downhill towards Doctors Lake, through wetlands into a drainage pipe that goes under railroad tracks parallel to Cedar Road, and ultimately onto and through the Barneses’ property. Since that time, the College has modified Pond F, increasing its capacity to accommodate a 100-year storm event versus the lesser storm threshold previously in place.

In November 2011, the Barneses sued the College and the subdivision’s homeowners association (which is not a part of this appeal), its initial claim one of negligence against the District for failing to design, “adapt,” and “operate in a responsible way” its stormwater management system. An inverse condemnation claim was added, but was ultimately resolved against the Barneses, who have not contested that ruling on appeal, focusing exclusively on their negligence claim.

The District raised various defenses including immunity under (a) article X, section 13, of the Florida Constitution, as implemented via section 768.28, Florida Statutes, and (b) section 373.443, Florida Statutes. After discovery, the District moved for summary judgment on the two claims. The District asserted that the alleged negligent conduct related solely to planning and design level functions of the storm water management system and a failure to modernize the ponds, which it claimed were immune from tort liability under 768.28. Regarding section 373.443, the District argued it was entitled to absolute immunity from liability for damages, which were allegedly caused by the failure of its storm water management system.

The Barneses responded that factual issues existed about the District’s operation of its water management system and that the District was negligent by constructing the least costly design of its water management system thereby creating a known hazard. At the hearing on its motion, the District argued it was entitled to immunity under section 768.28 because its ponds are designed rather than operated; the only thing the District could have done to address the Barneses’ concern was to have redesigned or reconfigured the ponds, which would be discretionary acts immune from liability. It also argued that immunity under section 373.443 applied because the partial failure of the system (i.e., the breach of a retaining wall on Pond F) is the type of incident the statute was intended to shelter from liability. The Barneses countered, however, that the District knew its system had shortcomings; that college personnel toured all the ponds, finding three (but not Pond F) had deviations from the original design or were missing components that controlled water levels; and that flood waters at the College’s performing arts building were pumped into Pond F exacerbating problems for the Barneses’ property. The basis for these assertions was contained in two depositions, one by a District employee charged with facilities management and the other by an engineer with the St. Johns River Water Management District, both filed belatedly in the trial court, but which were relied upon by the trial judge in his rulings.

In its rulings, the trial court noted that the Barneses’ amended complaint raised both a negligent design claim and an operational negligence claim, the latter consisting solely of the conclusory allegation that the District engaged in “operational negligence in failing to operate [its] water management system in a responsible way[.]” As to immunity under section 768.28, the trial court ruled that the Barneses’ negligence claim was not barred because “[tjhere at least appears to be a disputed issue of material fact on the issue of whether there is operational negligence on the part of the District which caused damage to the plaintiffs,” thereby precluding summary judgment. Turning to the claim of immunity under section 373.443, the trial court held that “[t]here is no dispute that the plaintiffs’ claims herein are founded on the District’s control of a ‘stormwa-ter management system,’ ‘impoundment’ or “work’ regulated by Chapter 373, the partial or total failure of which is alleged to have caused the plaintiffs’ damages.” As such, it held that the “District is immune from liability for the negligence claim asserted by the plaintiffs.” In doing so, the trial court tacitly concluded that section 373.443 extended immunity to the Barneses’ operational level negligence claims, ones that would otherwise be actionable under section 768.28’s waiver of immunity. A partial final judgment was later entered in favor of the District on the negligence claim as well as the inverse condemnation claim (in part because the Barneses had not lost all use of their property). As mentioned previously, the Barneses challenge only the entry of judgment on their negligence claim.

II.

Whether immunity exists in this case hinges on whether section 373.443 provides a broader scope of immunity than that provided by section 768.28 as applied to the District’s stormwater management system. The trial court ruled that section 768.28 does not provide the District with immunity from potential liability for the allegations of operational negligence the Barneses have asserted, a ruling the District does not contest. The specific task is thereby to determine whether the Barnes-es’ operational negligence claims survive the protective umbrella that section 373.443 provides for the stormwater management system at issue.

We turn then to the text of section 373.443, Florida Statutes, which was enacted in 1972 to provide immunity for the partial or total failure of dams and other listed public works, but which was amended in 1989 to include “stormwater management systems” within its scope. The statute, entitled “Immunity from liability,” reads as follows (with 1989 amendments in bold):

No action shall be brought against the state or district, or any agents or employees of the state or district, for the recovery of damages caused by the partial or total failure of any stormwater management system, dam, impoundment, reservoir, appurtenant work, or works upon the ground that the state or district is liable by virtue of any of the following:
(1) Approval of the permit for construction or alteration.
(2) The issuance or enforcement of any order relative to maintenance or operation.
(3) Control or regulation of stormwater management systems, dams, impound-ments, reservoirs, appurtenant'work, or works regulated under this chapter.
(4) Measures taken to protect against failure during emergency.

§ 373.443, Fla. Stat. (2009), amended by ch. 89-279, § 23, Laws of Fla. (1989) (emphasis added). The 1989 Act added the definition of a “stormwater management system,” which has remained unchanged to date:

[A] system which is designed and constructed or implemented to control discharges which are necessitated by rainfall events, incorporating methods to collect, convey, store, absorb, inhibit, treat, use, or reuse water to prevent or reduce flooding, overdrainage, environmental degradation, and water pollution or otherwise affect the quantity and quality of discharges from the system.

§ 373.403(10), Fla. Stat. (added by ch. 89-279, § 11, Laws of Florida (1989)). As of 1989, the statute facially provides immunity to the state or a district (or its agents) for partial/total failures of the defined systems/works “by virtue of .any of’ the four statutorily-defined activities (permit approvals; maintenance/operation orders; control/regulation of systems/works; and emergency measures). Only the third activity — the “[c]ontrol or regulation of stormwater management systems” — is at issue in this appeal.

No court has addressed the post-1989 revisions to the statute as they apply to a stormwater management system. But the Florida Supreme Court in Southwest Florida Water Management District v. Nanz, 642 So.2d 1084 (Fla.1994) discussed the 1987 version of the statute, whose language is identical to today’s version other than its exclusion of “stormwater management systems.” The legal question the supreme court addressed was: “Does section 373.443, Florida Statutes (1987), immunize a water management district from liability for damages arising from the failure of a stormwater management system?” Id. at 1085. Under the 1987 version of the statute, the majority said it did not, holding that the water management district was potentially liable for damages caused by the failure of its stormwater management system arising from the negligent operational-level activities alleged by Nanz. Id. at 1087. In reaching this conclusion, the majority noted that the district did not have “specific immunity” under the 1987 version of the statute, which did not include stormwater management systems at that time. The majority did not consider whether immunity might apply to any “dam, impoundment, reservoir, appurtenant work, or works” the district controlled or regulated as a subpart of its existing stormwater management system. Instead, the majority addressed only whether the district enjoyed “general immunity” under section 768.28, Florida Statutes, for the negligent acts alleged, which are summarized as follows:

The present complaint alleges that the District breached its duty of care by “failing] to properly maintain, operate, and open flood gates and or locks,” by “fail[ing] to properly regulate the flow of water in the creeks, rivers, canals, and lakes surrounding and/or near Plaintiffs’ real property,” and by “failftng] to properly dredge, clean, and otherwise operate, control, and/or maintain the drainage system.” The complaint summarizes: “Defendants, by their operational activities, effectively blocked the natural flow of water unnecessarily, causing the water ... to stop up and then back flow in a southerly direction, flooding Plaintiffs property.

642 So.2d at 1087-88. Based on the complaint’s allegations, the majority held that “a claim of operational-level negligence” was pleaded for which section 768.28 waived immunity. Id. As such, the “District is potentially liable for the alleged acts, and the trial court erred in dismissing the complaint.” Id. at 1088.

In a concurring opinion, Justice Grimes agreed that the case should proceed, but his focus was on the structure and language of section 373.443. He noted that although the legislature may have intended total immunity for districts in the operation of the systems, the statute could not be read to achieve this result. He pointed out that section 373.44B provided immunity for partial or total failures only if “by virtue of’ one of the four defined activities in subsections 373.443(l)-(4), which included the “[c]ontrol or regulation of dams, impoundments, reservoirs, appurtenant work, or works regulated under this chapter” and “[m]easures taken to protect against failure during emergency.” Simply because a partial or total failure of a dam or other structure occurred did not automatically result in immunity; instead, the partial/total failure had to be “by virtue of’ one of the statutorily listed actions; if so, section 373.443 would “appear to grant total immunity for damages caused by a break in the enclosure of water or a release of water caused by an equipment failure regardless of whether there was operational negligence.” Id. at 1088 (emphasis added). He also noted that the statute allowed for “liability for any damages not caused by a partial or total failure ... according to the planning-operational dichotomy” under section 768.28. Id. An example would be a damkeeper falling asleep causing waters to overflow, which would not be considered “a total or partial failure” of the dam under the statute’s language. Id. n. 2.

Turning to the allegations in Nanz’s complaint, Justice Grimes noted that most

[Ajppear directed to damages caused by planning-level decisions of the district, such as opening or closing dams or changing the flow of waters. However, some of the allegations are susceptible to the interpretation that damages were caused by operational negligence for which the district would not be immune under section 768.28 and by circumstances other than total or partial failure for which the district would not be immune under section 373.443.

Id. at 1088-89. In other words, some of the allegations — because they were not based on a total or partial failure of a dam or other work — are actionable.

Neither the majority nor concurring opinions in Nanz control the outcome of this case, but they highlight the interplay between section 768.28’s scope of immunity and that of section 373.443; the former exists only for planning level activities, while the latter is broader due to the 1989 inclusion of stormwater management systems and its more expansive language immunizing “partial or total” failures whether caused by operational negligence or not.

In this case, no dispute exists that the District’s stormwater management system partially failed due to the breach of a retaining wall for Pond F, which was caused, in part, by excessive floodwaters coming from the homeowners’ association property. There is also no dispute that the Barneses’ allegation in their complaint that the “system design” used by the District was inadequate is nothing more than a planning level decision by the District that is immunized under section 768.28 and section 373.443. The remaining focus of the dispute, therefore, is only whether the Barneses’ claim of operational negligence (which is otherwise actionable under section 768.28) is barred as one involving the partial/total failure of the District’s storm-water management system, which is undisputed, “by virtue of’ its “[c]ontrol or regulation” of the system.

The Barneses are correct that section 373.443 cannot be read “to grant absolute immunity from all forms of negligence” because it limits immunity to partial/total failures arising in only four defined situations. As Justice Grimes noted in his concurrence in Nanz, the overlay of immunity provided by sections 768.28 and 373.442 does not capture all forms of negligence (his napping damkeeper being an example); some limited species of negligence survive. But, as the trial judge noted, a strong argument exists that section 373.443 “was enacted specifically to avoid the operational versus planning distinction” under section 768.28 “otherwise there would be no reason to enact” the former.

We agree that section 373.433 was intended to provide a broader scope of immunity where a partial/total failure of a stormwater management system occurs and the failure arises from the control or regulation of the system. A thorny question — but one we may sidestep on these facts — is whether the phrase “control or regulation” in section 373.443 is broader in its application than “operation” or “maintenance.” Does a district’s “control” of its stormwater management system include and thereby subsume all its operational and maintenance activities of the system, and if so, was it the legislature’s intent to thereby extend immunity to all such activities (as Justice Grimes’s concurrence discusses)?

The reason we need not resolve this question is that section 373.433’s broad scope of immunity easily encompasses the Barneses’ claims that the District failed to design an adequate system, one that resulted in a partial failure due to the breach of the retaining wall in Pond F. Much of what the Barneses claim is couched in terms of a negligent failure to design or a failure to give adequate consideration to alternative designs that might have warded off the effects of flooding from the neighboring association’s runoff. Immunity for these planning level activities exists under section 768.28 as well as the broader immunity provided by section 373.443. Recognizing the scope of planning level immunity, the Barneses attempt to bolster the operational negligence claim in their amended complaint via two depositions, but neither lays out disputed facts that might be relevant to an operational level activity that caused their damages. Most of the testimony in the depositions relates to post-incident remedial efforts (such as repairing the damaged retaining wall), and much of the remainder attempts to second-guess the District’s original design of its stormwater management system. These types of allegations fall more closely into the category of planning level immunity. See, e.g., Kaweblum ex rel. Kaweblum v. Thornhill Estates Homeowners Ass’n, Inc., 801 So.2d 1015, 1016 (Fla. 4th DCA 2001) (alleged failure to improve one bank of canal and not the other is not-actionable; “cases uniformly hold that a governmental entity’s decision to upgrade or improve or not to upgrade or improve is a planning level function for which there can be no tort liability.”); Tucker v. Gadsden County, 670 So.2d 1053, 1054 (Fla. 1st DCA 1996) (“A governmental entity’s failure to upgrade or improve an existing road is a judgmental, planning level decision which is immune from tort liability under the doctrine of sovereign immunity.”).

The allegations that come closest to operational level activities regard a clogged drain, an inadequate weir along the lip of one pond, and other nonconformities in ponds other than Pond F. As to Pond F, the only deficiency was alleged to be an “inlet pipe structure” that needed some “back-fill and rip-rap” to prevent erosion around the structure. These collectively appear to be the allegations the trial judge viewed as operational level activities that precluded immunity under section 768.28, a determination we do not address but which appears quite thin as a basis for denying summary judgment. We conclude that these allegations, at best, fall short of establishing a viable negligence claim that is other than a “partial or total failure” of the District’s stormwater management system arising “by virtue of’ its “[cjontrol or regulation” of its system.

Finally, the Barneses alternatively claimed that the District established a stormwater management system that was designed so deficiently as to create a known dangerous condition for which is imposed on them a duty to warn or protect the public. See Gadsden County, 670 So.2d at 1054 (“[W]hen a governmental entity creates a knoum dangerous condition, which is not readily apparent to persons who could be injured by the condition, a duty at the operational-level arises to warn the public of, or protect the public from, the known danger.”) (quoting City of St. Petersburg v. Collom, 419 So.2d 1082, 1083 (Fla.1982)). On this record, we find no evidence that the District knew prior to the extraordinary rain event of August 14, 2009, that its stormwater management system was other than one that was designed to handle all but the most extreme rainfalls.

AFFIRMED.

ROWE, J., concurs; SWANSON, J., concurs in result only.

SWANSON, J.,

concurring in result only.

The trial court properly concluded that, pursuant to Section 373.443, Florida Statutes, the Appellee is immune from liability for the negligence claim asserted by the Appellant. The plain language of the statutory provision is dispositive.

      . Notably, some states use the word "supervise” rather than "control” in defining the scope of immunity in similar dam statutes. See, e.g., Ga. Code Ann. § 12-5-383 (2014) (“No action shall be brought against the state, the commission, or any employee of the state or the commission for damages sustained through the partial or total failure of any dam or other artificial barrier dealt with in this part or its maintenance by reason of any supervision or other action taken or not taken pursuant to former Code Section 12-5-375.”); N.C. Gen. Stat. Ann. § 143-215.35 (2014) ("No action shall be brought against the State of North Carolina, the Department, or the Commission or any agent of the Commission or any employee of the State or the Department for damages sustained through the partial or total failure of any dam or its maintenance by reason of any supervision or other action taken pursuant to or under this Part.”).'