author: KHOUZAM, Judge.

text:
    DEPARTMENT OF REVENUE o/b/o Jennifer Ann Moore, Appellant, v. Brett William WILLIAMS, Appellee.
    No. 2D12-3831.
    District Court of Appeal of Florida, Second District.
    Jan. 17, 2014.
    Pamela Jo Bondi, Attorney General, and Toni C. Bernstein, Senior Assistant Attorney General, Tallahassee for Appellant.
    No appearance for Appellee.
   KHOUZAM, Judge.

The Department of Revenue appeals a Final Judgment of Support which deviated from the child support guidelines by more than five percent based on the findings and recommendations of a hearing officer. Because the visitation agreement on which the deviation was based was not approved by the court as required by section 61.046(14), Florida Statutes (2011), we reverse.

On behalf of the Mother, the Department filed a petition for support and other relief against the Father. The parents reached a written agreement as to visitation but did not file the agreement or have it approved by the court. The matter went before a support enforcement hearing officer, who considered the visitation agreement in calculating the child support obligation. The Department objected to the hearing officer’s considering the visitation agreement in calculating the support obligation, arguing that pursuant to Department of Revenue ex rel. Sherman v. Daly, 74 So.3d 165 (Fla. 1st DCA 2011), the agreement could not support a deviation of more than five percent because it was neither approved nor established by a court. Over the Department’s objection, the hearing officer recommended deviating from the child support guidelines by more than five percent based on the agreement, referring to it as a “parenting plan.” The trial court adopted the hearing officer’s findings and recommendations in the final judgment of support without indicating whether it had approved the visitation agreement. After its motion to vacate was denied, the Department timely appealed.

Sherman, while factually distinguishable, is illustrative. In Sherman, the First District reviewed an administrative support order in which the administrative law judge deviated from the child support guidelines by more than five percent based on a visitation agreement between the parties. 74 So.3d at 166. Although the agreement in Sherman was verbal rather than written, and nothing in the facts of Sherman indicates that the administrative order was adopted by a court, the First District addressed the issue of whether a visitation agreement that has not been approved by a court can qualify as a “parenting plan” as defined under Chapter 61. The court held that where the agreement of the parties has not been approved or established by the court, the plain language of the child support statute prohibits a trial court from deviating from the guidelines based on the agreement. Id. at 168.

Under Chapter 61, a “parenting plan” is defined as “a document created to govern the relationship between the parents relating to decisions that must be made regarding the minor child.” § 61.046(14). The parenting plan “must contain a time-sharing schedule for the parents and child.” Id. And by definition, any parenting plan must be either “[developed and agreed to by the parents and approved by a court,” or “[established by the court ... if the parents cannot agree to a plan or the parents agreed to a plan that is not approved by the court.” § 61.046(14)(a); see also Sherman, 74 So.3d at 167.

Section 61.30 governs child support calculations. Subsection (l)(a) provides that although the guideline amount “presumptively establishes the amount” of child support, the trier of fact has authority to deviate from the guidelines amount by up to five percent based on its assessment of factors such as the needs of the child and the financial status of the parents. However, deviations based on a “parenting plan” are only authorized pursuant to subsections (ll)(a) and' (ll)(b): subsection (ll)(a)(10) authorizes deviations to the minimum award based on the “particular parenting plan” between the parties, and subsection (ll)(b) requires deviation where “a particular parenting plan provides that each child spend a substantial amount of time with each parent.” Although subsection (ll)(a)(ll) also authorizes the court to make “[a]ny other adjustment that is needed to achieve an equitable result,” as the court in Sherman stated, subsections (ll)(a)(10) and (ll)(b) would control, as they are the only statutory provisions that specifically address visitation. See Sherman, 74 So.3d at 167-68. Therefore, deviations of more than five percent based on visitation are only authorized pursuant to a court-approved parenting plan.

Here, because the final judgment indicates that the deviation from the child support guidelines was based on a visitation agreement that had not been approved or established by a court, we must reverse. The hearing officer was not authorized to approve the visitation agreement because her authority does not extend to issues of visitation. See Fla. Fam. L. R. P. 12.491 (delineating the powers and duties of support enforcement hearing officers without including any authority relating to visitation issues); see also Amendments to the Florida Family Law Rules of Procedure, 723 So.2d 208, 212 (Fla.1998) (concluding that hearing officers are not authorized to hear contested paternity proceedings because they “have no constitutional or statutory authorization to make recommendations regarding custody and visitation”). And, unfortunately, the trial court simply approved the findings and recommendations of the hearing officer without conducting an independent review of the visitation agreement. Nothing in the record indicates that the trial court ever specifically approved the agreement, either before the hearing or in the final judgment.

Nor was the deviation proper as equitable relief under the current statutory scheme. In Sherman, the First District determined that an unapproved visitation agreement could not support a deviation from the guidelines amount “even where equity compels the deviation.” 74 So.3d at 168. The court reached this conclusion despite the equitable catch-all provision in section 61.30(ll)(a)(ll) because it determined that the Legislature’s decision to use the word “other” in that subsection “indicates the adjustment must be based on some other grounds not already expressed in the subsection.” Id. at 167-68. Moreover, the court observed that the subsection explicitly addressing the parenting plan was more specific and therefore controlled over the general catch-all. Id. at 168.

Because the visitation agreement had not been approved or established by a court, it did not meet the statutory definition of a “parenting plan” and could not have supported the deviation based thereon. Although we agree with the trial court’s conclusion that both equity and policy support the deviation in this case, a court cannot “substitute its judgment for that of the Legislature insofar as the wisdom or policy” of clear legislation. Hamilton v. State, 366 So.2d 8, 10 (Fla.1978). Consequently, we must reverse the child support obligation in the final judgment and remand for a recalculation pursuant to section 61.80. If upon remand there exists an agreement meeting the statutory definition of a “parenting plan,” it may be considered in calculating the support obligation and may be used to support a deviation of more than five percent if appropriate.

Reversed and remanded for further proceedings consistent with this opinion.

NORTHCUTT and SLEET, JJ., Concur.

      . The issue of whether the trial court can, upon independent review, retroactively approve the visitation agreement in the final judgment is not before this court, and we do not address it. Rather, we are merely observing that nothing in the record indicates the visitation agreement has ever been approved by a court.


source: Caselaw Access Project

author: BLACK, Judge.

license: Public Domain

text:
    GAWKER MEDIA, LLC a/k/a Gawker Media, Appellant, v. Terry Gene BOLLEA, professionally known as Hulk Hogan; Heather Clem; Gawker Media Group, Inc. a/k/a Gawker Media; Gawker Entertainment, LLC; Gawker Technology, LLC; Gawker Sales, LLC; Nick Denton; A.J. Daulerio; Kate Bennert; and Blogwire Hungary Szellemi Alkotast Hasznosito KFT a/k/a Gawker Media, Appellees.
    No. 2D13-1951.
    District Court of Appeal of Florida, Second District.
    Jan. 17, 2014.

      Gregg D. Thomas and Rachel E. Fugate of Thomas & LoCicero PL, Tampa; and Seth D. Berlin and Paul J. Safier of Levine Sullivan Koch & Schulz, LLP, Washington, DC, for Appellant.
    Charles J. Harder of Harder Mirell & Abrams LLP; Kenneth G. Turkel and Christina K. Ramirez of Bajo Cuva Cohen & Turkel, P.A.; and David R. Houston of Law Office of David R. Houston, Reno, Nevada, for Appellee Terry Gene Bollea:
    No appearance for remaining Appellees.
   BLACK, Judge.

Terry Bollea sought to enjoin Gawker Media, LLC, from publishing and otherwise distributing the written report about his extramarital affair that includes video excerpts from the sexual encounter. The-circuit court granted Mr. Bollea’s motion for temporary injunction, though it did not articulate the reasons for doing so. On appeal, Gawker Media challenges the circuit court’s order, asserting that Mr. Bol-lea is collaterally estopped from seeking the same relief previously sought and decisively denied in federal court, and should the doctrine of collateral estoppel be inapplicable, that such relief is an unconstitutional prior restraint.- Because the temporary injunction is an unconstitutional prior restraint under the First Amendment, we reverse.

I. Background

In 2006, Mr. Bollea engaged in extramarital sexual relations with a woman in her home. Allegedly without Mr. Bollea’s consent or knowledge, the sexual encounter was videotaped. On or about October 4, 2012, Gawker Media posted a written report about the extramarital affair on its website, including excerpts of the videotaped sexual encounter (“Sex Tape”). Mr. Bollea maintains that he never consented to the Sex Tape’s release or publication. Gawker Media maintains that it was not responsible for creating the Sex Tape and that it received a copy of the Sex Tape from an anonymous source for no compensation.

On October 15, 2012, Mr. Bollea initiated an action in federal court by filing a multi-count complaint against Gawker Media and others, asserting claims for invasion of privacy, publication of private facts, violation of the right of publicity, and infliction of emotional distress. See Bollea v. Gawker Media, LLC, No. 8:12-cv-02348-T-27TBM, 2012 WL 5509624, at *2 (M.D.Fla. Nov. 14, 2012) (Bollea I). Additionally, on October 16, 2012, Mr. Bollea filed a motion for preliminary injunction, seeking to enjoin the named defendants from publishing any portion of or any content from the Sex Tape. Following a hearing, the federal court issued an order on November 14, 2012, denying the motion for preliminary injunction. See id. at *3-5. The court found that the requested preliminary injunction would be an unconstitutional prior restraint under the First Amendment and that notwithstanding the First Amendment issue, Mr. Bollea otherwise failed to demonstrate that he was entitled to a preliminary injunction under the applicable injunction standard. Id. at *3-4.

On December 28, 2012, Mr. Bollea voluntarily dismissed the federal action. That same day, Mr. Bollea filed an amended complaint in state circuit court, asserting essentially the same claims that he asserted in federal court. Thereafter and as he did in federal court, Mr. Bollea filed a motion for temporary injunction seeking to enjoin Gawker Media and others not participating in this appeal from publishing and otherwise distributing the video excerpts from the sexual encounter and complementary written report. Following a hearing, the circuit court issued an order on April 25, 2012, granting the motion for temporary injunction. The court did not make any findings at the hearing or in its written order to support its decision. On May 15, 2018, this court stayed the order granting the motion for temporary injunction pending the resolution of this appeal.

II. Applicable Standards

“The primary purpose of a temporary injunction is to preserve the status quo while the merits of the underlying dispute are litigated.” Manatee Cnty. v. 1187 Upper James of Fla., LLC, 104 So.3d 1118, 1121 (Fla. 2d DCA 2012). In the context of the media, “the status quo ... is to publish news promptly that editors decide to publish. A restraining order disturbs the status quo and impinges on the exercise of editorial discretion.” In re Providence Journal Co., 820 F.2d 1342, 1351 (1st Cir.1986), modified on other grounds on reh’g by 820 F.2d 1354 (1st Cir.), cert. dismissed, United States v. Providence Journal Co., 485 U.S. 693, 108 S.Ct. 1502, 99 L.Ed.2d 785 (1988). A temporary injunction is an “extraordinary remedy” that should be granted “sparingly and only after the moving party has alleged and proved facts entitling [him] to relief.” Liberty Fin. Mortg. Corp. v. Clampitt, 667 So.2d 880, 881 (Fla. 2d DCA 1996) (citations omitted).

A temporary injunction aimed at speech, as it is here, “is a classic example of prior restraint on speech triggering First Amendment concerns,” Vrasic v. Leibel, 106 So.3d 485, 486 (Fla. 4th DCA 2013), and as such, it is prohibited in all but the most exceptional cases, Near v. Minn. ex rel. Olson, 283 U.S. 697, 716, 51 S.Ct. 625, 75 L.Ed. 1357 (1931). Since “prior restraints on speech and publication are the most serious and least tolerable infringement on First Amendment rights,” the moving party bears the “heavy burden” of establishing that there are no less extreme measures available to “mitigate the effects of the unrestrained ... publication]” and that the restraint will indeed effectively accomplish its purpose. Neb. Press Ass’n v. Stuart, 427 U.S. 539, 558-59, 562, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976). Furthermore, “[w]here ... a direct prior restraint is imposed upon the reporting of news by the media, each passing day may constitute a separate and cognizable infringement of the First Amendment.” Neb. Press Ass’n v. Stuart, 423 U.S. 1327, 1329 (Blackmun, Circuit Justice, 1975).

We generally review orders granting temporary injunctions for an abuse of discretion. Forrest v. Citi Residential Lending, Inc., 73 So.3d 269, 275 (Fla. 2d DCA 2011). However, “[w]e apply a de novo standard of review to the determination of whether a temporary injunction constitutes an unconstitutional prior restraint on free speech.” Id. (citation omitted). And though an injunction order generally comes to this court clothed with a presumption of correctness, orders restraining “protected speech must be considered presumptively invalid” and will only be permitted if there are no less restrictive means available. Romero v. Erik G. Abrahamson, P.A., 113 So.3d 870, 872 (Fla. 2d DCA 2012); accord N.Y. Times Co. v. United States, 403 U.S. 713, 714, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971).

III. First Amendment

It is not clear from the hearing transcript, and certainly not from the order, why the circuit court granted the motion for temporary injunction. Based upon the few interjections the court made during the hearing, it appears that the court believed Mr. Bollea’s right to privacy was insurmountable and that publishing the content at issue was otherwise impermissible because it was founded upon illegal actions.

A. Privacy

“[W]here matters of purely private significance are at issue, First Amendment protections are often less rigorous.” Snyder v. Phelps, — U.S. -, -, 131 S.Ct. 1207, 1215, 179 L.Ed.2d 172 (2011) (citing Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 56, 108 S.Ct. 876, 99 L.Ed.2d 41 (1988)). On the other hand, “ ‘[sjpeeeh on “matters of public concern” ... is “at the heart of the First Amendment’s protection.” ’ ” Id. (quoting Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 758-59, 105 S.Ct. 2939, 86 L.Ed.2d 593 (1985) (plurality opinion)).

Speech deals with matters of public concern when it can be fairly considered as relating to any matter of political, social, or other concern to the community, or when it is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public. The arguably inappropriate or controversial character of a statement is irrelevant to the question whether it deals with a matter of public concern.

Id. at 1216 (citations omitted) (internal quotation marks omitted).

Mr. Bollea, better known by his ring name Hulk Hogan, enjoyed the spotlight as a professional wrestler, and he and his family were depicted in a reality television show detailing their personal lives. Mr. Bollea openly discussed an affair he had while married to Linda Bollea in his published autobiography and otherwise discussed his family, marriage, and sex life through various media outlets. Further, prior to the publication at issue in this appeal, there were numerous reports by various media outlets regarding the existence and dissemination of the Sex Tape, some including still shots therefrom. Despite Mr. Bollea’s public persona, we do not suggest that every aspect of his private life is a subject of public concern. See generally Post-Newsweek Stations Orlando, Inc. v. Guetzloe, 968 So.2d 608, 612 (Fla. 5th DCA 2007) (noting that appellant’s status as a public figure does not mean that every aspect of his private life is of public concern but nonetheless holding that enjoining the broadcaster from publicly airing appellant’s personal records and those of his family operated as an unconstitutional prior restraint under the First Amendment). However, the mere fact that the publication contains arguably inappropriate and otherwise sexually explicit content does not remove it from the realm of legitimate public interest. See Snyder, 131 S.Ct. at 1217; see also Fla. Star v. B.J.F., 491 U.S. 524, 525, 109 S.Ct. 2603, 105 L.Ed.2d 443 (1989) (holding that a news article about a rape was a matter of public concern and that the newspaper was not liable for the publication of the victim’s identity obtained from a police report released by law enforcement in violation of a Florida statute); Cape Publ’ns, Inc. v. Hitchner, 549 So.2d 1374, 1377 (Fla.1989) (holding that confidential information regarding a child abuse trial was a matter of legitimate public concern and that thus the newspaper’s publication of such did not violate privacy interests). It is clear that as a result of the public controversy surrounding the affair and the Sex Tape, exacerbated in part by Mr. Bollea himself, the report and the related video excerpts address matters of public concern. See Bartnicki v. Vopper, 532 U.S. 514, 534, 121 S.Ct. 1753, 149 L.Ed.2d 787 (2001) (“[Privacy concerns give way when balanced against the interest in publishing matters of public importance.... One of the costs associated with participation in public affairs is an attendant loss of privacy.”); Michaels v. Internet Entm’t Grp., Inc., No. CV 98-0583 DDP (CWx), 1998 WL 882848, at *10 (C.D.Cal. Sept. 11, 1998) (Michaels II) (“[T]he private facts depicted in the [publication] ha[d] a substantial nexus to a matter of legitimate public interest,” namely, a dispute over the dissemination of the sex tape, and the depiction of the sexual relations was “clearly part of the story.”); see also Jones v. Turner, No. 94 Civ. 8603(PKL), 1995 WL 106111, at *21 (S.D.N.Y. Feb. 7, 1995) (holding that the preliminary injunction was unjustifiable where nude pictures were related to the accompanying article and the article itself was a matter of public concern). But see City of San Diego, Cal. v. Roe, 543 U.S. 77, 84, 125 S.Ct. 521, 160 L.Ed.2d 410 (2004) (holding that the sexually explicit acts of the government employee, depicted in a video, did not address a matter of public concern where the acts “did nothing to inform the public about any aspect of the [employing agency’s] functioning or operation”); Toffoloni v. LFP Publ’g Grp., LLC, 572 F.3d 1201, 1213 (11th Cir.2009) (holding that the publication of nude photographs of a female professional wrestler taken twenty years prior was not protected speech because their publication was not related to the content of the reporting, namely, her murder).

In support of his contention that the report and video excerpts do not qualify as matters of public concern, Mr. Bollea relies on Michaels v. Internet Entertainment Group, Inc., 5 F.Supp.2d 823 (C.D.Cal.1998) (Michaels I), in which the court enjoined the commercial distribution of an entire sex tape that infringed the plaintiffs’ copyrights. However, the court in Mi-chaels I found the use of the sex tape to be purely commercial in nature. Specifically, the copyrighted tape was sold via the internet to paying subscribers, and the internet company displayed short segments of the tape as a means of advertisement to increase the number of subscriptions. Id. at 835. In contrast, Gawker Media has not attempted to sell the Sex Tape or any of the material creating the instant controversy, for that matter. Rather, Gawker Media reported on Mr. Bollea’s extramarital affair and complementary thereto posted excerpts from the video.

The court in Michaels I pointed out that although “[t]he plaintiffs are entitled to an injunction against uses of their names or likenesses to sell the [sex tape,] [t]he injunction may not reach the use of their names or likenesses to report or comment on matters of public interest.” Id. at 838. In accord with this conclusion, the court held in the companion case that the publication of a news report and brief excerpts of the sex tape was not an invasion of privacy and was protected speech. Michaels II, 1998 WL 882848, at *7, *10 (distinguishing the dissemination of an entire sex tape with the use of excerpts from the tape); see also Bollea v. Gawker Media, LLC, 913 F.Supp.2d 1325, 1331 n. 6 (M.D.Fla.2012) (Bollea II) (“[Gawker Media] did not simply post the entire [Sex Tape] — or substantial portions thereof, but rather posted a carefully edited excerpt consisting of less than two minutes of the thirty[-]minute video of which less than ten seconds depicted explicit sexual activity.”). Here, the written report and video excerpts are linked to a matter of public concern — Mr. Bollea’s extramarital affair and the video evidence of such — as there was ongoing public discussion about the affair and the Sex Tape, including by Mr. Bollea himself. Therefore, Mr. Bollea failed to meet the heavy burden to overcome the presumption that the temporary injunction is invalid as an unconstitutional prior restraint under the First Amendment. As such, it was within Gawker Media’s editorial discretion to publish the written report and video excerpts. See Providence Journal, 820 F.2d at 1351; see also Doe v. Sarasota-Bradenton Fla. Television Co., 436 So.2d 328, 331 (Fla. 2d DCA 1983) (noting that it is the primary function of the publisher to determine what is newsworthy and that the court should generally not substitute its judgment for that of the publisher).

B. Unlawful Interception

It appears that the circuit court may have been convinced by Mr. Bollea’s argument that the speech at issue is not entitled to First Amendment protection because the Sex Tape was created in violation of the law. However, there is no dispute that Gawker Media was not responsible for the creation of the Sex Tape. Nor has Mr. Bollea alleged that Gawker Media otherwise obtained it unlawfully. The Supreme Court in Bartnieki held that if a publisher lawfully obtains the information in question, the speech is protected by the First Amendment provided it is a matter of public concern, even if the source recorded it unlawfully. Bartnicki, 532 U.S. at 535, 121 S.Ct. 1753; see also CBS Inc. v. Davis, 510 U.S. 1315, 1318, 114 S.Ct. 912 (Blackmun, Circuit Justice, 1994) (“Nor is the prior restraint doctrine inapplicable because the videotape was obtained through the ‘calculated misdeeds’ of CBS.”); N.Y. Times Co. v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971) (holding that notwithstanding the fact that a third party had stolen the information, the press had a constitutional right to publish the Pentagon Papers because they were of public concern). As the speech in question here is indeed a matter of legitimate public concern, the holding in Bartnieki applies. As such, the temporary injunction acts as an unconstitutional prior restraint on Gawker Media’s protected speech.

IV. Collateral Estoppel

Gawker Media asserts that the circuit court’s order granting Mr. Bollea’s motion for temporary injunction is barred by the doctrine of collateral estoppel because the same issue was decisively adjudicated in the Middle District of Florida on Mr. Bollea’s motion for preliminary injunction. Collateral estoppel, referred to as issue preclusion in the federal courts, is a judicial doctrine that prevents relitigation of an issue that has been previously adjudicated. Sea Quest Int'l, Inc. v. Trident Shipworks, Inc., 958 So.2d 1115, 1120 (Fla. 2d DCA 2007). Since the pertinent prior decision was issued by the federal court, the federal rules of preclusion apply. See id. at 1119. Thus, this court must follow the “analysis the federal courts would apply with respect to issue preclusion,” the effect of which is to “assume hypothetically” that Mr. Bollea refiled his motion in federal court. See Amador v. Fla. Bd. of Regents ex rel. Fla. Int’l Univ., 830 So.2d 120, 122 (Fla. 3d DCA 2002).

Whether or not collateral estoppel applies depends on whether the federal court’s order denying Mr. Bollea’s motion for a preliminary injunction constitutes judicial finality. See Christo v. Padgett, 223 F.3d 1324, 1339 (11th Cir.2000) (“It is widely recognized that the finality requirement is less stringent for issue preclusion than for claim preclusion.”); see also Miller Brewing Co. v. Jos. Schlitz Brewing Co., 605 F.2d 990, 995 (7th Cir.1979) (stating that an interlocutory decision “will be given preclusive effect if it is necessarily based upon a determination that constitutes an insuperable obstacle to the plaintiffs success on the merits”). “ ‘[F]or purposes of issue preclusion ..., “final judgment” includes any prior adjudication of an issue in another action that is determined to be sufficiently firm to be accorded conclusive effect.’ ” Christo, 223 F.3d at 1339 n. 47 (quoting Restatement (Sec ond) Judgments § 13 (1980)). Whether the resolution in the first proceeding is sufficiently firm to merit preclusive effect turns on a variety of factors:

“To claim the benefit of collateral estop-pel the party relying on the doctrine must show that: (1) the issue at stake is identical to the one involved in the prior proceeding; (2) the issue was actually litigated in the prior proceeding; (3) the determination of the issue in the prior litigation must have been ‘a critical and necessary part’ of the judgment in the first action; and (4) the party against whom collateral estoppel is asserted must have had a full and fair opportunity to litigate the issue in the prior proceeding.”

Id. (quoting Pleming v. Universal-Rundle Corp., 142 F.3d 1354, 1359 (11th Cir.1998)). Gawker Media contends that all four prongs have been satisfied and that the federal court’s prior ruling is a final judgment on the merits of the issues presented by the preliminary injunction itself.

This court has not addressed this exact collateral estoppel issue, nor has the Eleventh Circuit Court of Appeals. And though Gawker Media’s arguments are persuasive, we are not convinced that a ruling, at such a provisional stage in the proceedings should have preclusive effect. The United States Court of Appeals for the Federal Circuit held “that decisions granting or denying preliminary injunctions may be sufficiently final to be given preclusive effect,” but the court further held that in order for decisions to have such effect, they must be “based upon a determination that constitutes an ‘insuperable obstacle’ to the plaintiffs success on the merits.” Abbott Labs. v. Andrx Pharm., Inc., 473 F.3d 1196, 1205 (Fed. Cir.2007) (citations omitted). Said “insuperable obstacle” only exists where the prior decision is based on a decisive determination and not on the mere likelihood of success. Id. at 1206. In this case, the federal court did not draw any decisive conclusions on the merits, nor did the federal court even address the likelihood of success thereon; rather, the federal court found that Mr. Bollea was not entitled to injunctive relief at a preliminary stage in the proceedings. See Bollea I, 2012 WL 5509624, at *2-5. And though the federal court’s order is unquestionably persuasive, based on the foregoing, we decline to give it preclusive effect.

V. Conclusion

The circuit court’s order granting Mr. Bollea’s motion for temporary injunction is reversed because it acts as an unconstitutional prior restraint under the First Amendment.

Reversed.

DAVIS, C.J., and ALTENBERND, J., Concur.

      . In both the underlying action and in the motion for temporary injunction, Mr. Bollea named Gawker Media, LLC; Heather Clem; Gawker Media Group, Inc.; Gawker Entertainment, LLC; Gawker Technology, LLC; Gawker Sales, LLC; Nick Denton; AJ. Dau-lerio; Kate Bennert; and Blogwire Hungary Szellemi Alkotast Hasznosito KFT as defendants. However, only Gawker Media, LLC, chose to appeal the order; the remaining parties are appellees in this proceeding who have made no formal appearance.

      . The circuit court also failed to require Mr. Bollea to post a bond, a very basic and ministerial act. See Fla. R. Civ. P. 1.610(b); see also Fla. High Sch. Activities Ass’n v. Mander ex rel. Mander, 932 So.2d 314, 315-16 (Fla. 2d DCA 2006) (holding that a trial court cannot waive the bond requirement nor can the bond amount be nominal); Cushman & Wakefield, Inc. v. Cozart, 561 So.2d 368, 370 (Fla. 2d DCA 1990) ("A trial court must require the movant to post an injunction bond before it enters a temporary injunction.”). Though the circuit court can determine the appropriate amount of the bond after hearing evidence from both parties, the circuit court is without discretion to determine whether to set bond in the first place. See Bellach v. Huggs of Naples, Inc., 704 So.2d 679, 680 (Fla. 2d DCA 1997).

      . The Supreme Court assigns each Justice to a federal circuit. See 28 U.S.C. § 42 (2012). As a Circuit Justice, the Justice is responsible for handling matters arising in cases from state and federal courts within his or her circuit.

      . Hulk Hogan with Mark Dagostino, My Life Outside the Ring 187-88, 253 (2009).

      . We are hard-pressed to believe that Mr. Bollea truly desired the affair and Sex Tape to remain private or to otherwise be "swept under the rug.” For example, in March 2012, Mr. Bollea called into TMZ Live, a celebrity and entertainment media outlet, and disclosed that he could not identify the woman in the Sex Tape because he had a number of "conquests” during the time it was filmed. Hulk Hogan — I Have NO IDEA Who My Sex Tape Partner Is, TMZ (March 7, 2012, 1:50 PM), http://www.tmz.com/2012/03/07/hulk-hogan-sex-tape-partner-tmz-live. Furthermore, in October 2012, Mr. Bollea appeared on The Howard Stern Show and professed that his good friend, Todd Alan Clem, known professionally as Bubba the Love Sponge, allowed Mr. Bollea to have sex with Mr. Clem’s then-wife Heather Clem. Hulk Hogan — Yes, I Banged Bubba's Wife, TMZ (October 9, 2012, 6:08 AM), http://www.tmz.com/2012/10/09/ hulk-hogan-bubba-thelove-sponge-radio-howard-stem. Mr. Bollea was certainly not shy about disclosing the explicit details of another affair he had while married to Linda Bollea in his autobiography. See My Life Outside the Ring at 187-88.

      . We are aware that Gawker Media is likely to profit indirectly from publishing the report with video excerpts to the extent that it increases traffic to Gawker Media’s website. However, this is distinguishable from selling the Sex Tape purely for commercial purposes. Cf. Michaels I, 5 F.Supp.2d 823.

      . Mr. Bollea cites to the offense of video voyeurism, section 810.145(2)(a), Florida Statutes (2006), and to the offense of interception and disclosure of electronic communications, section 934.03, Florida Statutes (2006), in support of his contention.

      . This opinion should not be construed as making a ruling regarding whether or not the information itself was intercepted unlawfully by Gawker Media’s source.

      . Gawker Media cites to numerous published and unpublished opinions from various other courts in support of its contention. See, e.g., Bridal Expo, Inc. v. van Florestein, No. 4:08-cv-03777, 2009 WL 255862 (S.D.Tex. Feb. 3, 2009); Suarez Cestero v. Pagan Rosa, 198 F.Supp.2d 73 (D.P.R.2002); Hayes v. Ridge, 946 F.Supp. 354 (E.D.Pa.1996); Lyon Ford, Inc. v. Ford Mktg. Corp., 337 F.Supp. 691 (E.D.N.Y.1971).

      . Mr. Bollea relies heavily on David Vincent, Inc. v. Broward County, Florida, 200 F.3d 1325 (11th Cir.2000), in support of his contention that the litigation of an action for a preliminary injunction does not have preclu-sive effect. However, the Eleventh Circuit, applying Florida collateral estoppel law, actually held that the state court’s denial of a temporary injunction does not preclude plaintiffs from later pursuing a permanent injunction. Id. at 1331.


author: PER CURIAM.

text:
    T.F., Appellant, v. N.M., Appellee.
    No. 1D13-4635.
    District Court of Appeal of Florida, First District.
    Jan. 22, 2014.
    Angela M. Cancio of Cancio & Romag-nolo, P.A., Live Oak, for Appellant.
    Christina Nieto Seifert of the Seifert Law Firm, P.A., Lake City, for Appellee.
   PER CURIAM.

T.F. appeals the denial of his petition for a writ of habeas corpus, in which he sought relief from a July 2012 final order terminating his parental rights to A.M., his daughter. In support of the petition, T.F. asserted that he was indigent, and, for that reason, the trial court denied him due process by failing to appoint counsel to represent him at the final hearing. Finding the circumstances of this case similar to those in Anderson v. Clark, 826 So.2d 1050 (Fla. 1st DCA 2002), where we held the father in a contested adoption proceeding was not entitled to appointed counsel, we affirm the order denying T.F.’s habeas corpus petition.

The instant proceedings began in October 2009, when T.F. filed a pro se petition to establish his paternity of A.M. and visitation with her. T.F. and the child’s mother, N.M., were never married. N.M. was residing outside of Florida; the child was in Florida, in the custody of her maternal grandmother. In response to T.F.’s attempt to assert his parental rights, the mother and grandmother independently filed pleadings seeking termination of his rights on grounds of abandonment.

An indigent parent is entitled to appointed counsel in proceedings that may lead to termination of his or her parental rights. See § 39.807(1), Fla. Stat. (2009); see also In the Interest of D.B., 385 So.2d 83, 91 (Fla.1980); G.C. v. W.J., 917 So.2d 998, 999 (Fla. 1st DCA 2005) (holding incarcerated indigent father was entitled to assistance of appointed counsel in termination of parental rights/adoption proceeding); O.A.H. v. R.L.A., 712 So.2d 4, 4 (Fla. 2d DCA 1998) (same). Here, although T.F. obtained a certificate of indigence when he initiated paternity proceedings in October 2009, the record establishes that he was able to secure legal representation at various times during the course of the proceedings — he hired the first of five attorneys in March 2010 — including to seek rehearing of the final judgment, and for subsequent appeals. Along the way, he filed an amended petition to establish paternity, in which he represented to the court that his financial standing had improved since filing his initial petition, such that he should have custody of A.M. And at the termination hearing, which occurred in July 2012, T.F. made no claim of indigence or inability to afford counsel.

Presented with substantially similar circumstances in Anderson, we concluded the father, whose rights had been terminated to permit the child’s adoption by a stepparent, was not entitled to appointed counsel. There, the father argued, relying on O.A.H., ■ that the trial court should not have terminated his parental rights without first determining if he was indigent, and therefore entitled to appointed counsel. We found he was not so entitled, because:

The record ... establishes that appellant secured counsel at different points in the proceedings below, i.e., to initiate visitation rights and modify his child support obligation under the dissolution of marriage judgment; to challenge the adoption proceeding before the final hearing; to challenge the judgment of adoption; and to proceed with this appeal.

Anderson, 826 So.2d at 1051. We reach the same conclusion in the instant case and, accordingly, AFFIRM the order denying T.F.’s habeas corpus petition.

THOMAS, MARSTILLER, and MAKAR, JJ., concur.

      . In T.F. v. N.M., 117 So.3d 496 (Fla. 1st DCA 2013), this court dismissed T.F.’s direct appeal of the termination order as untimely, but without prejudice to his filing a habeas corpus petition in the lower court seeking belated appeal. See In Interest of E.H., 609 So.2d 1289 (Fla.1992).


author: OSTERHAUS, J.

text:
    Marquise Tyrone JAMES, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-5042.
    District Court of Appeal of Florida, First District.
    Jan. 23, 2014.

      Nancy Daniels, Public Defender, Colleen Dierdre Mullen, Assistant Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Trisha Meggs Pate, Assistant Attorney General, and Meredith Hinshelwood, Assistant Attorney General, Tallahassee, for Appel-lee.
   OSTERHAUS, J.

Marquise Tyrone James appeals an order denying his motion to suppress evidence of fifteen grams of marijuana retrieved by police officers from his groin area and cocaine that fell from his person during a post-arrest inventory search at the jail. We affirm because there is no clear error in the trial court’s decision to deny Mr. James’s motion to suppress.

I.

On March 10, 2012, two police officers stopped the vehicle Mr. James was driving due to a window tint violation. When the officers approached Mr. James’s car, they asked if they could search him and his vehicle. The trial court found that Mr. James consented. And when Officer Young patted him down, he felt an “unusual” object that he could not identify in the area around Mr. James’s crotch. At the same time, the other officer checked Mr. James’s driver license and learned that he was on probation for armed robbery. The officers proceeded to Mirandize Mr. James and to ask about the unusual object in his pants. Mr. James then admitted to carrying a small amount of marijuana. By this point, other officers had arrived on the scene and one of them escorted Mr. James beside the front corner of a police cruiser, lowered his pants (but not his underpants), and retrieved a baggie containing marijuana that was sticking out of Mr. James’s underpants. Mr. James was then taken to the Escambia County jail for booking. At the jail, he was searched again and police recovered a different plastic baggie containing cocaine that fell from his person.

II.

In this single-issue appeal, Mr. James gives two reasons why the search in this case was improper and the illegal drug evidence should be suppressed. First, he argues that the marijuana retrieved by officers from his pants, as well as the cocaine that later dropped from his person, should be suppressed because he never consented to being searched. And lacking consent, he argues that the officers could not have lawfully patted him down and discovered the contraband.

Whether Mr. James gave voluntary consent to the officers’ search is a question of fact determined based on the totality of the circumstances. See Davis v. State, 594 So.2d 264, 266 (Fla.1992). In this case, the trial court found that Mr. James consented to the search. As an appellate court, we must defer to the trial court’s factual findings and disturb them only if clearly erroneous. Id,. We “accord a presumption of correctness to the trial court’s rulings on motions to suppress with regard to the ... determination of historical facts.” Golphin v. State, 945 So.2d 1174, 1182 (Fla.2006) (internal quotation marks omitted). The trial court based its decision here upon the testimony of the officer involved at the scene. Officer Young testified at the suppression hearing that Mr. James consented to a search of his person and the trial court favored his testimony over Mr. James’s conflicting testimony. Because competent, substantial evidence supports the trial court’s conclusion, we must uphold it.

The second reason Mr. James argues that the drug evidence should be suppressed is that, even if he did consent to a search, the officers exceeded the scope of his consent by searching his genitals. See Davis, 594 So.2d at 266. He cites language in Davis stating that express consent must be given to search an individual’s crotch. Id. He also notes that a reasonable person would not expect generically given consent to a pat-down to involve a search of one’s genitals. Id. See also United States v. McBean, 861 F.2d 1570, 1573 (11th Cir.1988) (per curiam) (“The scope of a consent search is defined by the scope of actual consent in the same way that the scope of a search based upon a search warrant is defined by the warrant.”). In United States v. Blake, for instance, the Eleventh Circuit held that pat-down consent could not be construed “as authorization for the officers to touch [individuals’] genitals in the middle of a public area in the Fort Lauderdale Airport.” 888 F.2d 795, 800 (11th Cir.1989). The court considered the search a serious violation of privacy to which the defendants had not knowingly and voluntarily consented. Id. See also Johnson v. State, 613 So.2d 554, 555 (Fla. 4th DCA 1993) (concluding that reasonable persons would not understand their consent to encompass strip searches in open view at the side of an interstate highway). In Sims v. State, 743 So.2d 97 (Fla. 1st DCA 1999), the defendant consented to a search after exiting the Tallahassee airport. After the officer asked further if he could pat-down his genital area and the defendant did not respond, the officer proceeded to search his genitals, identify an object, unzip the defendant’s pants, and retrieve cocaine. Id. at 99-100. This Court concluded that “by feeling his person through his clothing, then unzipping his trousers to remove [the cocaine] from his undergarments,” the search exceeded the scope of the defendant’s consent under the totality of the circumstances. Id. at 100. We said, “[w]ithout probable cause, reasonable suspicion, or consent, ... the initial, tactile search of the groin was unlawful.” Id.

Whereas these cases involved searches targeting genitalia, Officer Young’s search in this case was described more like a typical, over-the-clothes pat-down; he started high and worked down one side of the body to the other. Mr. James testified that the officer “went in my pockets and went searching around my crotch area.” Officer Young testified similarly that his pat-downs typically include the area around the crotch, while “afford[ing] the person as much privacy as possible.” His unrebutted testimony was that, for privacy sake, he avoided manipulating or pulling at the “unusual” object that he felt in Mr. James’ crotch area. Various federal and state cases describe pat-down searches in terms very similar to Officer Young’s testimony, as including the area around the crotch, pockets, belts, and legs, where a weapon or contraband might be kept. See, e.g., Terry v. Ohio, 392 U.S. 1, 17 n. 13, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (describing a “search ... of ... arms and armpits, waistline and back, the groin and area about the testicles, and the entire surface of the legs down to the feet”) (internal quotation marks omitted); United States v. Russell, 664 F.3d 1279, 1282 (9th Cir.2012) (a patdown search of the groin area was reasonably within the scope of the passenger’s consent as “[n]arcotics are often hidden on the body in locations that make discovery more difficult, including the groin area”). As this case does not involve the same privacy concerns identified in Blake, Davis, or Sims, we find no clear error in the trial court’s ruling as to the pat-down search.

Finally, Mr. James asserts that he did not consent to the officers’ final retrieval of the marijuana from his pants. At the suppression hearing Mr. James did not testify about the officer’s removal of the baggie from his pants. Testimony from various officers indicated that shortly after Officer Young’s search, officers Mir-andized Mr. James and he admitted to carrying a small amount of marijuana. Mr. James was escorted beside the police car, his outside pants were lowered (but not his underpants), whereupon Officer Tatum “could see the corner of the baggie sticking out ... and [he] grabbed it with the edge of my fingers and pulled it right out.” The trial court found that it all occurred quite quickly. And none of the testimony indicates that Officer Tatum’s retrieval involved touching or exposing Mr. James’s genitalia.

Under these circumstances, we also find no clear error in the trial court’s decision to deny the motion to suppress. Once Mr. James made a post-Miranda admission that he was carrying marijuana, the officers had probable cause to arrest him and search him incident to arrest; Mr. James’s consent was not required. See United States v. Rodney, 956 F.2d 295, 298-99 (D.C.Cir.1992); see also Florida v. Harris, - U.S. -, -, 133 S.Ct. 1050, 1055, 185 L.Ed.2d 61 (2013) (finding probable cause to conduct a warrantless search when available facts warrant reasonable belief that contraband or evidence of a crime is present); Virginia v. Moore, 553 U.S. 164, 178, 128 S.Ct. 1598, 170 L.Ed.2d 559 (2008) (“When officers have probable cause to believe that a person has committed a crime in their presence, the Fourth Amendment permits them to make an arrest, and to search the suspect in order to safeguard evidence and ensure their own safety.”).

III.

For these reasons, the trial court’s ruling denying Appellant’s motion to suppress is AFFIRMED.

WETHERELL and SWANSON, JJ„ concur.


author: CLARK, J.

text:
    PERDIDO SUN CONDOMINIUM ASSOCIATION, INC., Appellant, v. CITIZENS PROPERTY INSURANCE CORPORATION, a Florida Corporation, Appellee.
    No. 1D13-1951.
    District Court of Appeal of Florida, First District.
    Jan. 23, 2014.
    Richard M. Beckish, Jr. of the Liberis Law Firm, P.A., Pensacola, for Appellant.
    Kara Berard Rockenbach of Methe & Rockenbach, P.A., West Palm Beach and Gina G. Smith of Butler, Pappas, Weihmul-ler, Katz & Craig, LLP, Tallahassee, for Appellee.
   CLARK, J.

Perdido Sun Condominium Association (“Perdido Sun”) appeals the final order dismissing with prejudice its complaint for damages for Citizens Property Insurance Corporation’s (“Citizens”) alleged failure to attempt in good faith to settle Perdido Sun’s property insurance claim. The complaint was filed pursuant to section 624.155, Florida Statutes, which provides a civil remedy for persons damaged by an insurer’s failure to settle claims in good faith. The circuit court found that Citizens was immune from suit under section 627.351(6)(s)l., Florida Statutes, and that a statutory bad-faith action under section 624.155 was not among the specifically listed exceptions to this immunity. § 627.351(6)(s)l., a.-e., Fla. Stat. The circuit court’s dismissal of the complaint with prejudice is a determination that section 627.351(6)(s)l. shields Citizens from suit for the cause of action set out in section 624.155 under all circumstances and any set of facts. We disagree, reverse the final judgment for Citizens, and remand for further proceedings.

Citizens is an insurer created by the legislature for the public purpose of providing “affordable property insurance to applicants who are in good faith entitled to procure insurance through the voluntary market but are unable to do so.” § 627.351(6)(a)l., Fla. Stat. Citizens is described in the statute as “a government entity that is an integral part of the state, but is not a private insurance company.” Id. As a creature of statute, Citizens’ operations, procedures, duties, and legal status are governed by section 627.351(6), Florida Statutes.

At issue in this case is Citizens’ immunity from suit, as provided by section 627.351(6)(s)l., and particularly its immunity from a suit on the statutory cause of action established by section 624.155. Section 627.351(6)(s)l. provides in part:

(s)l. There shall be no liability on the part of, and no cause of action of any nature shall arise against, the corporation or its agents or employees, for any action taken by them in the performance of their duties or responsibilities under this subsection. Such immunity does not apply to:
a. Any of the foregoing persons or entities for any willful tort;
b. The corporation or its producing agents for breach of any contract or agreement pertaining to insurance coverage; ...

After its insured property was damaged by a hurricane in 2004, Perdido Sun made a claim on its insurance policy with Citizens. Perdido Sun was not satisfied with the amount of Citizens’ eventual payment on the claim and filed a breach of contract action to recover additional sums under the insurance contract. Perdido Sun prevailed on the breach of contract claim and this Court affirmed that judgment. Citizens Prop. Ins. Corp. v. Perdido Sun Condo. Ass’n, Inc., 22 So.3d 71 (Fla. 1st DCA 2009).

Based on the circuit court’s findings regarding Citizens’ actions in the breach of contract case, Perdido Sun filed a second lawsuit against Citizens for the civil remedy provided in section 624.155(l)(b)l., Florida Statutes, a statutory “bad faith” claim. Section 624.155(1) establishes a cause of action against “the insurer” for “[n]ot attempting in good faith to settle claims when, under all the circumstances, it could and should have done so, had it acted fairly and honestly toward its insured and with due regard for her or his interests.” § 624.155(l)(b)l., Fla. Stat. An insurer’s failure to “promptly settle claims” in order to influence partial settlements is also listed as an act subjecting an insurer to the statutory remedy under section 624.155(l)(b)2.

Citizens moved to dismiss the “bad faith” complaint, asserting its immunity from suit under section 627.851(6)(s)l. The circuit court granted the motion and entered final judgment for Citizens, adopting the reasoning and statutory analysis of Citizens’ immunity from suit under section 627.351(6)(s) discussed in Citizens Prop. Ins. Corp. v. Garfinkel, 25 So.3d 62 (Fla. 5th DCA 2009), disapproved on other grounds, Citizens Prop. Ins. Corp. v. San Perdido Ass’n Inc., 104 So.3d 344 (Fla. 2012), and Judge Wetherell’s dissent in San Perdido Ass’n, Inc., 46 So.3d 1051, 1053 (Fla. 1st DCA 2010). The standard for this Court’s review is de novo because the motion to dismiss was “based on a claim that no legal cause of action exists as alleged in the complaint.” Florida Dep’t of Corrections v. Abril, 969 So.2d 201, 204 (Fla.2007).

On appeal, Perdido Sun maintains that the immunity provided to Citizens by section 627.351(6)(s)l. does not apply to “any willful tort” under the exception in subsection 627.351(6)(s)l.a. and that the actions of an insurer described by section 624.155(l)(b) constitute “willful torts.” Citizens counters that the exceptions to Citizens’ immunity listed in section 627.351(6)(s)l. must be strictly construed and the absence of a specific reference to the statutory cause of action provided by section 624.155 among the listed exceptions precludes a “bad faith” action under that statute against Citizens.

The phrase “any willful tort” is not further defined in chapter 627. However, “willful” is defined in section 627.041(7): “in relation to an act or omission which constitutes a violation of this part [willful] means with actual knowledge or belief that such an act or omission constitutes such violation and with specific intent nevertheless to commit such act or omission.” A “tort” is defined as: “A civil wrong, other than a breach of contract, for which a remedy may be obtained, usu. in the form of damages; a breach of duty that the law imposes on persons who stand in a particular relation to one another.” Black’s Law Dictionary 1526 (8th ed. 2004). Black’s Law Dictionary equates “willful tort” with “intentional tort,” both defined as “[a] tort committed by someone acting with general or specific intent.” Id. at 1527.

The law does impose a duty of good faith on Citizens regarding its policy holders. Although Citizens differs from private insurers because Citizens has “a duty to the state to manage its assets responsibly to minimize its assessment potential,” the same statute imposes upon Citizens a “duty to its policyholders to handle claims carefully, timely, diligently, and in good faith.” § 627.351(6)(s)2., Fla. Stat. Because the law, in section 627.351(6)(s), spe-cifieally imposes upon Citizens a duty to handle its insured’s claims in good faith, a breach of this duty falls under the broad definition of “tort.” It is true that not every violation of statute by an entity governed or regulated by the statute gives rise to a private cause of action to enforce the provision or to recover damages. “Whether a violation of statute can serve as the basis for a private cause of action is a question of legislative intent.” Aramark Uniform & Career Apparel, Inc. v. Easton, 894 So.2d 20, 23 (Fla.2005). Here, the legislative intent to create a private cause of action in “any person ... when such person is damaged” against “an insurer” for failure to attempt in good faith to settle claims is clear under section 624.155. The fact that Citizens is “not a private insurance company” (§ 627.351(6)(a) 1., Fla. Stat.) does not mean that it is not an “insurer” as defined by section 624.108, Florida Statutes, and as contemplated in section 624.155(1).

In light of the definitions of “willful” and “tort,” and considering that Citizens, while not a private insurance company, is nonetheless charged by the legislature to provide affordable property insurance to policy holders and to serve the policy holders at “the highest possible level but never less than that generally provided in the voluntary market,” (§ 627.351(6)(a)4., Fla. Stat.), the “willful tort” exception to Citizens’ immunity from suit allows Citizens’ to be sued for the statutory civil remedy provided in section 624.155(b). Of course, the plaintiff is required to prove the cause of action, including the willfulness and lack of good faith in Citizens’ settlement efforts. This burden of proof does not mean that there is no cause of action available under section 624.155 against Citizens under any possible factual circumstances. Citizens’ immunity does not extend to the “■willful tort” of failing to attempt in good faith to settle claims as provided by section 624.155, Florida Statutes.

The final order granting the motion to dismiss the complaint, with prejudice, is REVERSED and this cause remanded. To the extent that the opinion in Citizens Prop. Ins. Corp. v. Garfinkel, 25 So.3d 62 (Fla. 5th DCA 2010), disapproved on other grounds, Citizens Prop. Ins. Corp. v. San Perdido Ass’n, Inc., 104 So.3d 344 (Fla.2012) expressly and directly conflicts with the decision of this court, we certify conflict with the fifth district decision. In addition, in light of Citizens’ status as a government entity serving the compelling public purpose described in its enabling statute, we certify the following question of great public importance:

WHETHER THE IMMUNITY OF CITIZENS PROPERTY INSURANCE CORPORATION, AS PROVIDED IN SECTION 627.351(6)(S), FLORIDA STATUTES, SHIELDS THE CORPORATION FROM SUIT UNDER THE CAUSE OF ACTION CREATED BY SECTION 624.155(1)(B), FLORIDA STATUTES FOR NOT ATTEMPTING IN GOOD FAITH TO SETTLE CLAIMS?

WOLF and VAN NORTWICK, JJ., concur.

      . Unlike the propriety and mechanism for review of the non-final orders via extraordinary writ or interlocutory appeal, as addressed in Citizens Prop. Ins. Corp. v. Garfinkel, 25 So.3d 62 (Fla. 5th DCA 2010); Citizens Prop. Ins. Corp. v. San Perdido Ass’n Inc., 46 So.3d 1051 (Fla. 1st DCA 2010); and Citizens Prop. Ins. Corp. v. San Perdido Ass’n Inc., 104 So.3d 344 (Fla.2012), this is an appeal of a final order dismissing the action with prejudice. The reviewable nature of the order on appeal here is not in question.

      . Because section 627.351(6)(s)l. specifically addresses Citizens' immunity and the exceptions thereto, we are not dealing with the waiver of sovereign immunity for torts against the state and state agencies under section 768.28, Florida Statutes. See also Art. X, §13, Fla. Const.

      .A similar claim was filed by another condominium association owning property insured by Citizens-San Perdido Association, Inc. Litigation by these two associations against Citizens has progressed in parallel fashion. See Citizens Prop. Ins. Corp. v. San Perdido Ass’n, Inc., 46 So.3d 1051 (Fla. 1st DCA 2010), approved, 104 So.3d 344 (Fla.2012); Citizens Prop. Ins. Corp. v. San Perdido Ass’n, Inc., 22 So.3d 71 (Fla. 1st DCA 2009).

      . " ‘Insurer’ includes every person engaged as an indemnitor, surety, or contractor in the business of entering into contracts of insurance or of annuity.” § 627.03, Fla. Stat. " ‘Person’ includes an individual, insurer, company!,] ... corporation!,] ... and every legal entity.” § 624.04, Fla. Stat.


text:
    Johnnie FLOYD, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-2268.
    District Court of Appeal of Florida, First District.
    Jan. 23, 2014.
    Deana K. Marshall, Riverview, for Appellant.
    Pamela Jo Bondi, Attorney General, and Virginia Harris, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the denial of all but one of the appellant’s claims. For the reasons discussed below, we reverse and remand the denial of ground two to the extent the appellant asserts that counsel was ineffective for failing to object when the state impeached him with his post-Miranda silence.

In ground two, the appellant alleges that counsel failed to object when the state impeached him with his post-arrest, post-Miranda silence. He alleges that the prosecutor asked him why he did not talk to the police or tell the police that he acted in self defense. Specifically, he believes counsel should have objected to the following line of questioning:

State: Okay. You told this jury that this Shooting was in self-defense. That’s what your attorney has asked you and that’s what your response was that you shot this man in self-defense?
Defendant: Yes.
State: Okay. Then why did you say no, you didn’t want to talk to the police.
State: Why not talk to the police if what you are saying is true.
Defendant: Because I could always talk to them.
State: You could? When?
Defendant: Whenever I got my lawyer.
State: And did you do that?
Defendant: I got my lawyer.
State: Did you talk to the police?
Defendant: They never came and talked to me.
State: Oh, did you[r] attorney ever invite them to come talk to you and say, hey, we got a meeting?
Defendant: I mean, I figured it was probably too much — too late then.
State: Oh. So you didn’t really want to talk to the police?
Defendant: I mean, I never — it came up. That never — it was never in the conversation.

This line of questioning clearly constituted comments on the appellant’s right to remain silent. See State v. Hoggins, 718 So.2d 761 (Fla.1998) (holding that if comment is fairly susceptible of being construed by the jury as a comment on the defendant’s exercise of his or her right to remain silent, it violates the defendant’s state constitutional right to silence, whether comment was introduced in state’s casein-chief or for impeachment purposes; holding that the state may not impeach a defendant with his post-arrest or post-Miranda silence). Thus, it appears counsel may have been deficient for failing to object to the state’s questions regarding appellant’s post-arrest silence. As the appellant’s defense at trial was self-defense, the state’s highlighting of the fact that he exercised his right to remain silent and did not volunteer information could have been prejudicial. Accordingly, we reverse and remand for the trial court to attach portions of the record refuting appellant’s allegations or to hold an evidentiary hearing.

AFFIRMED in part, REVERSED and REMANDED in part, with directions.

LEWIS, C.J., WOLF and ROBERTS, JJ., concur.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . It appears an issue may be whether the appellant waived his right to remain silent by voluntarily talking to the police after he had initially invoked his rights. The Florida Supreme Court has held that the prohibition against commenting on a defendant’s right to remain silent does not apply where a defendant has waived the right. See Hudson v. State, 992 So.2d 96 (Fla.2008) (“Because Hudson waived his right to remain silent, gave interviews to police, and testified at trial, he has not invoked his right to remain silent, and testimony concerning his reluctance to implicate Mejia further was not improper comment on his right not to testify.”). We express no opinion on the matter. That is an issue which may be addressed on remand. See Braddy v. State, 111 So.3d 810 (Fla.2012) (holding that there is a three-part analysis for determining whether a defendant who has initiated further conversation with police after invoking his right to remain silent has waived that right. The three requirements are: (1) that the defendant initiates further conversation; (2) that the defendant is reminded of his or her rights; and (3) that the defendant knowingly and voluntarily waives those rights a second time).


text:
    Philip YON, Appellant, v. R.J. REYNOLDS TOBACCO COMPANY; Philip Morris USA, Inc.; Lorillard Tobacco Company; Lorillard, Inc.; Liggett Group, LLC (f/k/a Liggett Group, Inc., f/k/a Brooke Group, Ltd., Inc., f/k/a Liggett & Myers Tobacco Company); and Vector Group Ltd., Inc. (f/k/a Brooke Group, Ltd., Inc.), Appellees.
    No. 1D13-0492.
    District Court of Appeal of Florida, First District.
    Jan. 23, 2014.

      Robert G. Kerrigan of Kerrigan, Estess, Rankin, McLeod & Thompson, LLP, Pensacola, for Appellant.
    Charles F. Beall, Jr., of Moore, Hill & Westmoreland, P.A., Pensacola; Gregory G. Katsas of Jones Day, Washington, D.C., for Appellee R.J. Reynolds Tobacco Co.
    Geoffrey J. Michael of Arnold & Porter LLP, Washington, D.C., for Appellee Philip Morris USA, Inc.
   PER CURIAM.

AFFIRMED. Gaff v. R.J. Reynolds Tobacco Co., 129 So.3d 1142 (Fla. 1st DCA 2013); Roughton v. R.J. Reynolds Tobacco Co., 129 So.3d 1145 (Fla. 1st DCA 2013).

THOMAS, MARSTILLER, and MAKAR, JJ., concur.


text:
    Howard WILLIAMS, Appellant, v. MADISON COUNTY SHERIFF’S OFFICE (In re: Forfeiture of: Twenty Two Thousand Two Hundred and Forty Dollars ($22,240.00) In United States Currency (MCSO Case #: 13-ICE-026)), Appellee.
    No. 1D13-5395.
    District Court of Appeal of Florida, First District.
    Jan. 23, 2014.
    A. Randall Haas, Fort Lauderdale, for Appellant.
    Paula M. Sparkman and Robert J. Tel-fer, III, of Messer Caparello, P.A., Tallahassee, for Appellee.
   PER CURIAM.

The Court has determined that the October 30, 2013, notice of appeal failed to timely invoke its jurisdiction to review the September 18, 2013, Order Finding Probable Cause and Directing the Claimant to Respond. Accordingly, appellee’s motion to dismiss, filed on November 22, 2013, is granted and the appeal is dismissed. .

LEWIS, C.J., PADOVANO and MARSTILLER, JJ., concur.


text:
    STATE of Louisiana v. Timothy L. MATHEWS, Walter Myles, Ashley Stewart, and Julio Kaiser, Jr.
    No. 2013-K-0525.
    Supreme Court of Louisiana.
    Nov. 15, 2013.
   PER CURIAM.

|,We granted certiorari in this matter in order to determine whether the lower courts erred in granting and then affirming defendants’ motions to quash in the instant matter. Finding that they did err, we reverse.

As stated by the court of appeal, the facts of the underlying case are unknown and not pertinent to the issue before the Court. The State alleges that the offenses occurred on June 12, 2008. Defendants Timothy L. Mathews, Walter Myles, Ashley Stewart, and Julio Kaiser, Jr., were charged by bill of information on July 3, 2008. Eight and one half months later, on April 16, 2009, the State nolle prosequied the case as to all defendants. After a span of seventeen months, the State reinstituted charges against the four by bill of information on September 22, 2010. On February 4, 2011, four and one half months after the second bill of information was filed, Myles filed a motion to quash which was later adopted by all defendants. At the hearing of the motion, defendants argued that the statutory time periods had run as to the charges and that their constitutional rights to speedy trial had been violated. The trial court granted the motion to quash on October 21, 2011, finding that the statutory time limitations had prescribed and that the delay in trying the defendants had unduly prejudiced their ability to present a defense.

Ik As an initial matter, we note that the court of appeal was correct in finding that the prosecution did not run afoul of the time limitations contained in La.C.Cr.P. art. 572, La.C.Cr.P. 578, or La.C.Cr.P. art. 576, for the reasons set forth in that opinion.

The court of appeal erred, though, in finding that the State had violated the defendants’ constitutional rights to a speedy trial because of the delay in bringing them to trial. The standard for evaluating a constitutional speedy trial claim is the test announced in Barker v. Wingo, 407 U.S. 514, 530-32, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). That test consists of four factors: (1) the length of the delay, (2) the reason for the delay, (3) the defendant’s assertion of his right to a speedy trial, and (4) the prejudice to the defendant. In Barker, the Supreme Court stated:

The length of the delay is to some extent a triggering mechanism. Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance.

Barker, 407 U.S. at 530-31, 92 S.Ct. 2182.

|3The court of appeal found that the time of the delay between the date of the offenses and the filing of the first motion to quash was almost three years, a time period that is presumptively prejudicial to all four defendants. The court of appeal pointed out, although some of the delay was clearly attributable to the defendants, approximately half of the delay was due to the State’s failure to reinstitute the charges for seventeen months. That seventeen month period should not, however, have been used in calculating the delay.

When calculating the time delay in a constitutional speedy claim, the Supreme Court has said:

[Ujunder the rule of MacDonald, when defendants are not incarcerated or subjected to other substantial restrictions on their liberty, a court should not weigh that time towards a claim under the Speedy Trial Clause.

United States v. Loud Hawk, 474 U.S. 302, 312, 106 S.Ct. 648, 88 L.Ed.2d 640 (1986) (citing United States v. MacDonald, 456 U.S. 1, 102 S.Ct. 1497, 71 L.Ed.2d 696 (1982)). That Court further said:

[WJhen no indictment is outstanding, only the “actual restraints imposed by arrest and holding to answer a criminal charge ... engage the particular protections of the speedy trial provision of the Sixth Amendment.”

Loud Hawk, 474 U.S. at 310, 106 S.Ct. 648 (citing United States v. Manon, 404 U.S. 307, 320, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971)). Here, the offenses occurred on June 12, 2008 and the State nolle prose-quied the charges on April 16, 2009, ten months later. The second bill of information was filed on September 22, 2010. During the time period between the nolle prosequi and the second bill of information, seventeen months, the defendants were not under arrest or held to answer a criminal charge, and, thus, that seventeen month period is not used in calculating a constitutional speedy trial delay. The motion to quash was filed on February 4, 2011, five and one half months after the second bill of information was filed. The total delay between the time of the offense and the filing of the motion to quash, excepting the period when defendants were not under arrest, is about fifteen and one half months. ^Although much of this fifteen and one half month delay is attributable to defendants, we do not need to further quantify that number, as the fifteen and one half month delay, in itself, is not presumptively prejudicial.

Because the delay is not presumptively prejudicial, we are not required to look further at the remaining three Barker factors. We note, however, that as the dissenter below pointed out, the defendants failed to provide any evidence of specific prejudice such as lost evidence or unavailability of witnesses.

WRIT GRANTED; REVERSED.

JOHNSON, C.J. and KNOLL, J„ dissent and would deny the writ.

      . La.C.Cr.P. art. 572 reads in pertinent part:
      A. Except as provided in Articles 571 and 571.1, no person shall be prosecuted, tried, or punished for an offense not punishable by death or life imprisonment, unless the prosecution is instituted within the following periods of time after the offense has been committed:
      (1) Six years, for a felony necessarily punishable by imprisonment at hard labor.
      (2) Four years, for a felony not necessarily punishable by imprisonment at hard labor.
      (3) Two years, for a misdemeanor punishable by a fine, or imprisonment, or both.
      (4) Six months, for a misdemeanor punishable only by a fine or forfeiture.

      . La.C.Cr.P. art. 578 reads:
      A. Except as otherwise provided in this Chapter, no trial shall be commenced nor any bail obligation be enforceable:
      (1) In capital cases after three years from the date of institution of the prosecution;
      (2) In other felony cases after two years from the date of institution of the prosecution; and
      (3)In misdemeanor cases after one year from the date of institution of the prosecution.
      B. The offense charged shall determine the applicable limitation.

      .La.C.Cr.P. art. 576 reads:
      When a criminal prosecution is timely instituted in a court of proper jurisdiction and the prosecution is dismissed by the district attorney with the defendant's consent, or before the first witness is sworn at the trial on the merits, or the indictment is dismissed by a court for any error, defect, irregularity, or deficiency, a new prosecution for the same offense or for a lesser offense based on the same facts may be instituted within the time established by this Chapter or within six months from the date of dismissal, whichever is longer.
      A new prosecution shall not be instituted under this article following a dismissal of the prosecution by the district attorney unless the state shows that the dismissal was not for the purpose of avoiding the time limitation for commencement of trial established by Article 578.