author: LOGUE, J. LAGOA, J.

text:
    Lisa M. DETOURNAY, et al., Appellants, v. CITY OF CORAL GABLES, etc., et al., Appellees.
    No. 3D11-2012.
    District Court of Appeal of Florida, Third District.
    Dec. 4, 2013.

      Andrew Dickman, P.A., and Andrew W.J. Dickman, Naples, for appellants.
    Akerman Senterfitt and Gerald B. Cope, Jr., Elizabeth M. Hernandez, and Jennifer Cohen Glasser, Miami, for appellee City of Coral Gables; Tew Cardenas, Santiago D. Echemendia, Miami, and Maria P. Gonzalez for intervenor-appellee Amace Properties, Inc.
    Before SHEPHERD, C.J., and LAGOA and LOGUE, JJ.
   LOGUE, J.

Lisa Detournay and Brenda Randol, who own homes in Coral Gables, and their homeowners’ association, the Rivera Neighborhood Association, Inc., (hereinafter “the Homeowners”) filed a two-count complaint to require the City of Coral Gables to prosecute an enforcement action against nearby property owned by Amace Properties, Inc. The trial court dismissed the first count for lack of standing. Although it held the Homeowners had no standing, the trial court nevertheless entered a judgment against the Homeowners on the second count. On appeal by the Homeowners, we affirm the dismissal of count one, albeit on different grounds, and we direct the dismissal of count two. Under the doctrine of separation of powers, the City’s discretion to file, prosecute, abate, settle, or voluntarily dismiss a building and zoning enforcement action is a purely executive function that cannot be supervised by the courts, absent the violation of a specific constitutional provision or law.

FACTS AND PROCEDURAL HISTORY

Amace Properties, Inc. owns commercial property on one of the branches of the canals that run through the City to Biscayne Bay. For the most part, these canals are lined with expensive homes. From its property, Amace operates what both the City and the Homeowners maintain is a private yacht basin that rents slips and moorings in a manner that violates various provisions of the City’s building and zoning code. In April 2004, the City issued three administrative citations against Amace. After filing these enforcement actions, however, the City held them in abeyance for years while attempting to settle them as part of a proposed re-development of Amace’s property. Unhappy at the City’s failure to vigorously prosecute Amace, the Homeowners’ filed the instant case to force the City to pursue its enforcement actions. Count one requested a declaratory judgment and count two requested an injunction.

The tenor of the Homeowners’ concerns are apparent from the following language in the complaint:

46. Unless restrained, defendant city will continue to ignore its zoning regulations, contrary to the express language in the zoning code, and continue to allow the operation of the illegal private yacht basin at issue here.
47. Immediate and irreparable injury, loss and damage for which there is no adequate remedy at law will result to the plaintiffs by this action of the city because this private yacht basin use will continue to operate in violation of the law.
48. The city’s zoning code has as its basis the government’s police powers— to protect the public health safety and welfare. Where the city’s zoning code is ignored, the guarantee of the city’s protection of the public health, safety and welfare is also ignored and the public is irreparably harmed.
49. The refusal of the City of Coral Gables to enforce its zoning code, where three notices of violation were issued and the city attorney confirmed the violation, creates an injury to plaintiffs and all Coral Gables citizens that cannot be compensated by money or remedied in any other manner except by requiring enforcement of the violated code provision.
50. Plaintiffs as residents of the City of Coral Gables have a legitimate and reasonable expectation that all citizens will be treated the same when it comes to the enforcement of the city’s zoning code. Plaintiffs reasonably expect that certain citizens and/or property owners are not “more equal” than others when the city seeks to enforce its zoning code.
51. Plaintiffs cannot seek enforcement of the city’s zoning code where the city refuses to do so.
52. Plaintiffs injury cannot be “cured” except by requiring the city to enforce its zoning code, follow its law and direct the property owner to cease its illegal use or to obtain the required conditional use approval, thus legalizing the illegal use.

Amace intervened in the lawsuit as a defendant, although the Homeowners made no allegations against Amace. In its answer, motion to dismiss, and renewed motion to dismiss, the City raised the holding of Trianon Park Condominium Association, Inc. v. City of Hialeah, 468 So.2d 912, 922 (Fla.1985), asserting that the Homeowners were not entitled to the relief sought because the City had discretion whether and how to prosecute violations of its zoning ordinances. On the second day of trial, the trial court entered the order and final judgment on appeal, dismissing count one for lack of standing and finding in favor of the City on count two. This appeal followed.

DISCUSSION

We agree with the dismissal of count one, albeit on grounds different than that relied upon by the trial judge. Rather than basing the dismissal on standing, we think the simplest and most direct explanation of why dismissal is proper is provided by the principles of separation of powers discussed in Trianon and its progeny. Count two, seeking injunctive relief, should be dismissed for the same reason.

In Trianon, owners of units in a condominium building that had been constructed in an allegedly grossly negligent manner sued the City of Hialeah. They sought to hold the City liable for failure to enforce its building and zoning laws against the developer who built the condominium. Id. at 915. The Florida Supreme Court held that a government entity is not liable in tort to individual property owners for the failure to enforce provisions of building and zoning codes. Id. at 919. Although Trianon involved a suit for torts, its reasoning and holding apply equally well to suits like the instant case, where private parties seek a declaratory judgment and injunction against a city regarding the failure of the city to enforce its building and zoning codes against another private party.

In holding a city cannot be sued by a private party because it failed to enforce its building and zoning laws against another private party, the Court observed that “certain discretionary functions of government are inherent in the act of governing and are immune from suit.” Id. at 918. In this regard, the Court stated:

We find that the enforcement of building codes and ordinances is for the purpose of protecting the health and safety of the public, not the personal or property interests of individual citizens. The discretionary power to enforce compliance with the building code flows from the police power of the state. In that regard, this power is no different from the discretionary power exercised by the police officer on the street in enforcing a criminal statute, the discretionary power exercised by a prosecutor in deciding whether to prosecute, or the discretionary power exercised by a judge in making the determination as to whether to incarcerate a defendant or place him on probation. Statutes and regulations enacted under the police power to protect the public and enhance the public safety do not create duties owed by the government to citizens as individuals without the specific legislative intent to do so.

Id. at 922; see also Carter v. City of Stuart, 468 So.2d 955, 957 (Fla.1985) (“The amount of resources and personnel to be committed to the enforcement of this ordinance was a policy decision of the city. The city has the right to set its priorities in reference to law enforcement.”).

This immunity from suit is often called sovereign immunity. Trianon, 468 So.2d at 922. It bears repeating, however, that the reason courts cannot generally supervise the executive when it is deciding when and how to enforce specific laws is not based on the archaic notion that “the king can do no wrong.” Instead, it is founded on the doctrine of separation of powers, one of the structural pillars upon which American freedoms rest: “under the constitutional doctrine of separation of powers, the judicial branch must not interfere with the discretionary functions of the legislative or executive branches of government absent a violation of constitutional or statutory rights.” Id. at 918. To hold otherwise, the Court reasoned, “would require the judicial branch to second guess the political and police power decisions of the other branches of government and would violate the separation of powers doctrine.” Id.

Turning to the instant case, the City’s discretion to file, prosecute, abate, settle, or voluntarily dismiss a building and zoning enforcement action is analogous to a prosecutor’s discretion to file, prosecute, abate, settle, or dismiss a criminal or civil lawsuit. Id. at 922. The prosecutor’s discretion in this regard is a pure executive function that cannot be supervised by the courts, absent the violation of a specific constitutional provision or law.

It follows in the instant case that the City’s discretion to file, prosecute, abate, settle, or dismiss a building and zoning enforcement action against Amace is an executive function that cannot be supervised by the courts, absent the violation of a specific constitutional provision or law.

Our decision in this regard dovetails with the cases holding that a writ of mandamus cannot issue against a city on behalf of a private party to require the city to enforce its building and zoning laws against another private party. See Alexander v. City of Coral Gables, 745 So.2d 1004, 1005 (Fla. 3d DCA 1999) (holding that mandamus does not lie to compel a city to enforce its zoning regulations, because the decision whether to enforce is discretionary); Centrust Sav. Bank v. City of Miami, 491 So.2d 576, 577 (Fla. 3d DCA 1986) (holding that a writ of mandamus does not lie to compel a city to enforce its building code against third parties); RHS Corp. v. City of Boynton Beach, 736 So.2d 1211, 1213 (Fla. 4th DCA 1999) (holding that mandamus does not lie to compel a city to enforce its zoning regulations, because the decision whether to enforce is discretionary, rather than ministerial).

The few cases holding to the contrary pre-date Trianon and appear not to have considered or followed the controlling principle of separation of powers. See Fortunato v. City of Coral Gables, 47 So.2d 321, 323 (Fla.1950) (reversing the denial of a temporary injunction sought to prevent the city from issuing a building permit); Rebholz v. Floyd, 327 So.2d 806, 809 (Fla. 2d DCA 1976) (reversing for issuance of a writ of mandamus to enforce zoning regulations).

While the cases we rely on arose in torts, mandamus and criminal law, the governing principles apply equally well to injunctions and declaratory actions. Separation of powers is a constitutional doctrine that extends across all procedural vehicles that might be used to challenge executive action. It would be a hollow idea if it applied only to some procedures and not others. In this regard, the case of Kempfer v. St. Johns River Water Management District, 475 So.2d 920 (Fla. 5th DCA 1985), is easily distinguishable. Kempfer held only that sovereign immunity does not bar property owners’ rights to seek declaratory relief to construe a deed and easement that they conveyed to a government. It involved the government’s legal rights and responsibilities as a property owner. It did not implicate the government’s discretion whether or not to prosecute enforcement actions against third parties. Our decision does not address the ability of the Homeowners to bring a direct action against Amace because the Homeowners have filed no complaint and requested no relief against Amace; therefore, the issue of the validity of such a lawsuit is not before us.

CONCLUSION

We are sympathetic to the frustration of the Homeowners at the City’s decision to abate its enforcement action against Amace, but we must defer to the City’s right to exercise its discretion to seek a settlement that might accommodate the concerns of all parties. In this situation, the courts have no role in advising or directing a government when, if, and how to maintain an administrative enforcement action: the role of the courts is limited to adjudicating any such action when it is properly at issue before them. To the extent that the Homeowners seek to have the City desist in its settlement efforts and instead vigorously prosecute the enforcement actions, they need to knock on the doors of city hall, not the courthouse.

For the foregoing reasons, we affirm the trial court’s decision to dismiss, although on the grounds stated herein. We reverse that portion of the final judgment ruling on the merits because the court should not have reached that issue. Instead, count two should also be dismissed.

Affirmed, in part, reversed, in part, and remanded for proceedings consistent with this decision.

SHEPHERD, C.J., concurs.

LAGOA, J.

(dissenting).

I respectfully disagree with the majority’s decision to affirm the trial court. The plaintiffs, Lisa Detournay (“Detournay”), Brenda Randol (“Randol”), and the Riviera Neighborhood Association, Inc. (“RNA”) (collectively, “Homeowners”) appeal an order and final judgment dismissing with prejudice Count I (declaratory relief), and finding in favor of the defendant, City of Coral Gables (the “City”), on Count II (injunctive relief), of their second amended complaint. For the following reasons, I would reverse.

I.. FACTUAL AND PROCEDURAL HISTORY

Detournay and Randol each own a home on Caballero Boulevard in Coral Gables. Their homes sit along what is known as the Mahi Waterway. The Mahi Waterway runs through the City and provides access to Biscayne Bay. Defendant/intervenor, Amace Properties, Inc. (“Amace”), owns commercial property on the Mahi Waterway, west of Detournay and Randol’s homes. Amace rents spaces behind its property to boat owners, allowing them to tie up their boats along bulkheads. RNA is a homeowners association “representing the interests of its members who are concerned with protecting and preserving the residential neighborhood in the area of and adjacent to” Amace’s property.

The Homeowners filed a Second Amended Complaint for declaratory and injunc-tive relief pursuant to section 86.021, Florida Statutes (2009), seeking to end the City’s abatement of its zoning regulation enforcement against Amace. The Homeowners assert that Amace’s rental of the boat spaces constitutes the operation of an “illegal private yacht basin” under the City’s zoning regulations.

In Count I, the Homeowners seek “a declaration regarding whether the private yacht basin is operating pursuant to the City’s zoning regulations and whether the City acted contrary to the requirements of its zoning regulations when it failed to close the illegal private yacht basin.” In Count II, the Homeowners seek “permanent injunctive relief that would enjoin the operation of the private yacht basin,” if the trial court finds in Count I that Amace is operating a private yacht basin contrary to the City’s zoning regulations and that “the city acted contrary to the requirements of its zoning regulations when it failed to close the illegal private yacht basin.”

The Homeowners specifically allege that Amace’s use of its property to rent out the boat spaces “has caused Plaintiffs to suffer from boat congestion, noise, pollution, canal bank erosion, wake damage and a diminution of their privacy and the tranquil use of their property.”

Amace’s Answer raised several affirmative defenses, including estoppel, laches, and that the yacht basin, which was established in 1947, is a legally non-conforming use permitted under the City’s code. The City’s Answer raised various affirmative defenses, including that municipalities have discretion to enforce their zoning regulations and the City did not abuse its discretion, that the Homeowners’ claim for injunctive relief fails to state a cause of action, that injunctive relief is an improper remedy, and that the Homeowners have failed to exhaust their administrative remedies.

On the morning of the third day of trial, the City filed a renewed motion to dismiss and memorandum of law. For the first time, the City argued that the Homeowners lacked standing to assert their claims because they had not alleged, and could not establish, that they had suffered a special injury as a result of the City’s failure to enforce its zoning code. The City also argued that the Homeowners’ claims failed because municipalities have discretion as to how and when to enforce their zoning regulations.

The Homeowners objected, arguing that the issue of standing could not be raised at this point in the trial. The trial court conducted a hearing on the City’s motion, and heard testimony from two of the City’s witnesses — a City zoning official and Armando Guerra, Amace’s president. Both witnesses testified to the history of various negotiations and alleged agreements between Amaee and the City with regard to Amace’s use of its property.

At the conclusion of Guerra’s testimony, the trial court dismissed Count I, finding that the Homeowners lacked standing. At the conclusion of the zoning official’s testimony, the trial court concluded that the City had not abused its discretion in the enforcement of its zoning regulations.

The trial court subsequently entered the order and final judgment on appeal. In its written order, the trial court dismissed Count I with prejudice, finding that the Homeowners lacked standing absent evidence of a special injury. Specifically, the trial court found “that there is no standing for these private citizens to bring this action absent evidence of a special injury.... Because Plaintiffs have not and cannot establish special injury, the Court finds, as a matter of law, that under the circumstances presented, these Plaintiffs lack standing as to Count I.” The trial court further found in favor of the City on Count II, concluding that, based on the testimony heard in the case, the City had not abused its discretion. This appeal ensued.

II. ANALYSIS

The trial court dismissed Count I for lack of standing. “Whether a party is the proper party with standing to bring an action is a question of law to be reviewed de novo.” FCD Dev., LLC v. S. Fla. Sports Comm., Inc., 37 So.3d 905, 909 (Fla. 4th DCA 2010) (quoting Westport Recovery Corp. v. Midas, 954 So.2d 750, 752 (Fla. 4th DCA 2007)), review denied, 63 So.3d 750 (Fla.2011). An appellate court reviews an order of dismissal based on lack of standing de novo. Wheeler v. Powers, 972 So.2d 285, 288 (Fla. 5th DCA 2008); Sanchez v. Century Everglades, LLC, 946 So.2d 563, 564 (Fla. 3d DCA 2006). “In determining whether to dismiss a complaint for lack of standing, [the Court] must confine [its] review to the four corners of the complaint, draw all inferences in favor of the pleader, and accept all well-pled allegations in the complaint as true.” Payne v. City of Miami, 927 So.2d 904, 906 (Fla. 3d DCA 2005).

As discussed below, the trial court erred in dismissing Count I for three reasons. First, the issue of standing was waived by the City. This Court has stated that a challenge to a party’s standing can be waived if not raised as an affirmative defense. See Stratton v. 6000 Indian Creek, LLC, 95 So.3d 334, 336 (Fla. 3d DCA 2012) (standing is an affirmative defense that can be waived); Bank of New York Trust Co. v. Rodgers, 79 So.3d 108 (Fla. 3d DCA 2012) (reversing final judgment entered in favor of defendants based on plaintiffs lack of standing where there was no denial or defense raised in defendants’ pleadings concerning standing); see also Phadael v. Deutsche Bank Trust Co. Americas, 83 So.3d 893, 895 (Fla. 4th DCA 2012) (“We have previously explained that lack of standing is an affirmative defense that must be raised by the defendant and the failure to raise it generally results in waiver.”), review denied, 97 So.3d 824 (Fla.2012); Kissman v. Panizzi, 891 So.2d 1147, 1150 (Fla. 4th DCA 2005) (same). But see Maynard v. Fla. Bd. of Educ., 998 So.2d 1201 (Fla. 2d DCA 2009) (holding that standing need not be raised only by means of an affirmative defense). Here, the City failed to raise standing as an affirmative defense and only asserted lack of standing on the third day of trial. I would therefore find that the City waived the issue of standing by failing to raise it as an affirmative defense, and that the trial court erred in considering the City’s motion to dismiss on that basis at such a late date in the proceedings.

Second, even if a challenge to standing had not been waived, the Declaratory Judgment Act does not require that a special injury be established in order to maintain a claim under the Act, as long as the elements of the Act itself are established. See Combs v. City of Naples, 834 So.2d 194, 197 (Fla. 2d DCA 2002) (“Section 86.021, which addresses standing to seek a declaratory judgment, contains no requirement that a special injury be established.”). “[I]n order to properly invoke the jurisdiction of the circuit court, the party seeking a declaration must not only show that he is in doubt as to the existence or nonexistence of some right or status, but also that there is a bona fide, actual, present, and practical need for the declaration[.]” State, Dep’t of Envtl. Prot. v. Garcia, 99 So.3d 539, 544 (Fla. 3d DCA 2011) (citations omitted).

Accepting all well-pled allegations in the Homeowners’ complaint as true, I would find that the Homeowners are in doubt as to the existence or nonexistence of a right under the City’s zoning ordinances and that there exists a bona fide, actual, present and practical need for the declaration. Because the Homeowners’ interests are sufficient to confer standing to seek a declaratory judgment here, I would find that the trial court erred in dismissing Count I for lack of standing.

Finally, even if the City had not waived the issue of standing and even if special damages were required under Florida’s Declaratory Judgment Act, I nonetheless would reverse the trial court’s order as it relates to Detournay and Randol because they sufficiently alleged special damages to allow them to maintain a cause of action. The seminal cases addressing the issue of a private citizen’s right to seek enforcement of a municipal zoning ordinance are Boucher v. Novotny, 102 So.2d 132 (Fla.1958), and Renard v. Dade County, 261 So.2d 832 (Fla.1972). In Boucher, the Florida Supreme Court established the now well-settled rule that in order for a private citizen to maintain an action to enforce a valid municipal zoning ordinance, he or she must allege facts showing “special damages.” 102 So.2d at 135. The Court explained:

We, therefore, align ourselves with the authorities which hold that one seeking redress, either preventive or corrective, against an alleged violation of a municipal zoning ordinance must allege and prove special damages peculiar to himself differing in kind as distinguished from damages differing in degree suffered by the community as a whole.

Id. (emphasis added).

In Renard, the Court further clarified that the “ ‘special damage’ rule of the Boucher case is an outgrowth of the law of public nuisance. Zoning violations have historically been treated as public nuisances not subject to suit by an individual unless that individual has suffered damages different in kind and degree from the rest of the community.” 261 So.2d at 835 (footnote omitted). Significantly, however, the Court noted that “in the twenty years since the Boucher decision, changed conditions, including increased population growth and density, require a more lenient application of that rule.” Id. at 837-38 (emphasis added). Accord Skaggs-Albertson’s v. ABC Liquors, Inc., 363 So.2d 1082, 1088 (Fla.1978) (stating that the “special damage” rule still has vitality in actions seeking to enforce a valid zoning ordinance, albeit with a more liberal application).

Here, the Homeowners allege that Amace’s rental of the boat spaces “has caused Plaintiffs to suffer from boat congestion, noise, pollution, canal bank erosion, wake damage and a diminution of their privacy and the tranquil use of their property.” The Second Amended Complaint also states that Detournay and Ran-dol live “immediately to the east” of Amace’s property.

Applying Renard’s mandate of a more lenient application of the Boucher rule, I would find that Detournay and Randol sufficiently alleged special damages particular to them that differ in kind, rather than simply degree, from those suffered by other homeowners within Coral Gables whose properties do not lie along the Mahi Waterway and who therefore are not uniquely affected by the yacht basin’s activities. Compare Kagan v. West, 677 So.2d 905 (Fla. 4th DCA 1996) (Pariente, J.) (finding that plaintiffs alleged and proved special damages different from those suffered by the community as a whole where plaintiffs shared a private road with defendant property owner), with Centrust Sav. Bank v. City of Miami, 491 So.2d 576 (Fla. 3d DCA 1986) (no standing where plaintiff made no claim that it had suffered a special injury apart from the injury suffered by any member of the general public as a result of alleged building code violations), and Cont’l Con-Dev Co. v. Shallberg, 267 So.2d 40 (Fla. 4th DCA 1972) (finding that where plaintiff brought suit on behalf of himself and all other property owners in the city, he did not have damages different in kind from that of all the other property owners in the general area where his house was across the street from alleged zoning violation).

Additionally, I believe that the trial court erred in making a finding on the merits in favor of the City on Count II (injunctive relief). As pled, Count II is dependent upon a declaration in favor of the Homeowners in Count I. Therefore, once the trial court determined that the Homeowners lacked standing to proceed with Count I, the trial court was necessarily precluded from making a finding on Count II.

Turning to the majority, I cannot agree with its reliance upon the doctrine of separation of powers — an issue not raised by either party before the trial court or this Court — in order to affirm the result below. Not only does the majority misapply the doctrine of separation of powers to the Homeowners’ allegations, it also fails to address the issue of the Homeowners’ standing.

The majority asserts that the trial court properly dismissed Count I (declaratory relief), not on the grounds stated by the trial court — lack of standing — but rather, under the “controlling principle of separation of powers.” Specifically, the majority states that the City’s discretion to prosecute a zoning violation is a purely executive function that cannot be supervised by the courts. The majority relies upon Trianon Park Condominium Association v. City of Hialeah, 468 So.2d 912 (Fla.1985), for this proposition.

First, the issue of separation of powers' was not raised by the City or Amace before the trial court or this Court. At best, the City included a citation to Trianon in its Answer Brief bereft of any reference to the separation of powers doctrine. Moreover, as this issue was not raised on appeal, Detournay and Randol have not been given an opportunity to address the issue of separation of powers.

Notwithstanding the City’s failure to raise or preserve this issue, I will address the majority’s reliance on the Trianon case. In Trianon, the issue was whether the City of Hialeah could be held liable in tort to condominium owners for damage to condominium units caused by building defects on the basis that the City of Hialeah’s building inspectors were negligent in their inspections during construction. In holding that the City of Hialeah could not be held liable, the Court reasoned that enforcement of building codes and ordinances constituted a discretionary governmental function for which there has never been a duty of care, and with which the judicial branch must not interfere. 468 So.2d at 917-18, 922.

Trianon, and the doctrine of separation of powers enunciated therein, however, do not apply in the instant case. First, Tria-non concerns a cause of action at law for damages. Here, the Homeowners did not seek a remedy at law, but rather, sought declaratory and injunctive relief. See Boucher, 102 So.2d at 134 (stating that a citizen who suffers special damages resulting from a zoning violation “is entitled to injunctive relief in the absence of an adequate legal remedy”). Therefore the rules of governmental tort liability would not apply to Appellants’ claims. See Trianon, 468 So.2d at 917 (“[F]or there to be governmental tort liability, there must be either an underlying common law or statutory duty of care with respect to the alleged negligent conduct. For certain basic judgmental or discretionary governmental functions, there has never been an applicable duty of care.”) (emphasis added).

Second, the “special damage” rule set forth in Boucher is an outgrowth of the law of public nuisance, which states that because a public nuisance is an offense against all citizens, it is subject to abatement only on motion of the state. Renard, 261 So.2d at 835 n. 5; Skaggs-Albertson’s, 363 So.2d at 1088 (“Inasmuch as a public nuisance was an offense against the state and, accordingly, was subject to abatement on motion of the proper governmental agency, an individual could not maintain an action for a public nuisance unless he suffered some special damage from the public nuisance.”). But, as discussed above, if an individual can show some special damage from an alleged zoning violation, he or she then has standing to maintain an action to enforce the zoning ordinance in equity against both a municipality and a private party. See Skaggs-Albertson’s, 363 So.2d at 1088; Renard, 261 So.2d at 837; Boucher, 102 So.2d at 135; Page v. Niagara Chem. Div. of Food Mach. & Chem. Corp., 68 So.2d 382 (Fla.1953); Bozeman v. City of St. Petersburg, 74 Fla. 336, 76 So. 894 (1917). In short, once special damages are shown, enforcement of the zoning ordinance is no longer an action purely within the discretion of the state.

Thus, if the Homeowners prevail on the merits, Boucher and its progeny entitle the Homeowners to a judicial injunction prohibiting Amace from continuing to operate an allegedly illegal yacht basin; Trianon likely prohibits the Homeowners from seeking damages from the City for its reluctance to enforce its zoning regulations, but it says nothing about the Homeowners’ ability to stop the activity itself.

Additionally, the majority addresses itself to Count I (declaratory relief). But if separation of powers were a legally valid reason to dismiss the complaint, that basis would apply only to Count II (injunctive relief), in which the Homeowners sought enforcement of the City’s zoning laws against the City and Amace. Notably, the City did not raise the issue of “separation of powers” either before the trial court or this Court, as it relates to either Count I or Count II. As Count II is pled as dependent on a finding in favor of the Homeowners in Count I, and the majority fails to discuss the issue of standing, which was the basis of the trial court’s ruling on Count I below, and fails to address the Florida Supreme Court’s opinions of Boucher and Renard, it is unclear how the majority can reach the issue at all.

Because there is no support for this alternative theory in the record, it is improper for the majority to rely upon it in affirming the trial court’s dismissal of Count I. See Robertson v. State, 829 So.2d 901, 907-08 (Fla.2002) (“The key to the application of [the Tipsy Coachman doctrine] of appellate efficiency is that there must have been support for the alternative theory or principle of law in the record before the trial court.”); State v. Gerry, 855 So.2d 157, 163 n. 5 (Fla. 5th DCA 2003).

The majority further overlooks the fact that Amace was a party to this suit. Even if the Homeowners could not seek judicial relief against the City, they retain their ability to seek a declaration that Amace’s use of its property violates the local zoning ordinances and they retain their ability to enjoin Amace from further alleged illegal activity. See e.g., Boucher; Renard; Skaggs-Albertson’s.

Indeed, the analysis by the majority imports the tort-based sovereign immunity doctrine of Trianon into an area long recognized by the Florida Supreme Court as subject to judicial enforcement against both municipalities and private parties. See Boucher; Renard; Skaggs-Albert-son’s; Fortunato. The majority expands the law of Florida here by extending the concept of municipal immunity from tort liability and damages to municipal immunity from declaratory and injunctive relief- and it immunizes Amace’s conduct along the way.

Finally, the majority’s attempt to cast aside Fortunato v. City of Coral Gables, 47 So.2d 321 (Fla.1950), violates the Florida Supreme Court’s express statement that it does not overrule precedent “sub silentio.” See Arsali v. Chase Home Finance LLC, 121 So.3d 511 (Fla.2013). It may well be that the Florida Supreme Court will move the law of this State to where the majority believes it should be, but it is beyond our jurisdiction to recede from that Court’s existing precedent.

III. CONCLUSION

For the reasons stated above as to Count I, I find that the City waived the issue of standing. Alternatively, I conclude that special damages were not required to be pled. Moreover, even if special damages were required, Detournay and Randol sufficiently alleged special damages. Lastly, I find that the trial court erred in ruling on Count II, which, as pled, was entirely dependent on Count I. Accordingly, I dissent from the majority’s decision and would reverse the order and final judgment on appeal.

      . Although we respect the dissent's concern in this regard, we believe that the City’s two and one half page argument in their answer brief citing to Trianon and contending "the City has prosecutorial discretion in whether or how to proceed” with its enforcement actions, coupled with the Homeowners' argument in their reply brief that the City should not have such discretion, is more than sufficient to raise the application of Trianon in this appeal.

      . See Valdes v. State, 728 So.2d 736, 738-39 (Fla.1999) ("This Court has long held that as the prosecuting officer, the state attorney has ‘complete discretion’ in the decision to charge and prosecute, and the judiciary cannot interfere with this 'discretionary executive function.’ ”) (citations omitted); State v. Bloom, 497 So.2d 2, 3 (Fla.1986) ("Under Florida’s constitution, the decision to charge and prosecute is an executive responsibility, and the state attorney has complete discretion in deciding whether and how to prosecute.”); Johnson v. State, 314 So.2d 573, 577 (Fla.1975) ("[T]he discretion of the Attorney General in choosing whether to prosecute or not to prosecute, or to abandon a prosecution already started, is absolute.”); Bess v. Reno, 563 So.2d 95, 96 (Fla. 3d DCA 1990) (holding that the trial court did not err in refusing, in effect, to mandamus the state attorney to institute extradition proceedings); Thompson v. Reno, 546 So.2d 83, 84 (Fla. 3d DCA 1989) (holding that the state attorney’s discretion extends to civil actions as well as criminal actions); State v. Jogan, 388 So.2d 322, 323 (Fla. 3d DCA 1980) (holding that the decision to nolle prosequi is vested solely in the state attorney’s discretion and cannot be made or supervised by the courts); State v. C.C.B., 465 So.2d 1379, 1381 (Fla. 5th DCA 1985) ("In the criminal justice system the discretion to prosecute or not is a pre-trial posture vested solely in the state attorney's discretion.”).

      . That statute states as follows:
      86.021. Power to construe
      Any person claiming to be interested or who may be in doubt about his or her rights under a deed, will, contract, or other article, memorandum, or instrument in writing or whose rights, status, or other equitable or legal relations are affected by a statute, or any regulation made under statutory authority, or by municipal ordinance, contract, deed, will, franchise, or other article, memorandum, or instrument in writing may have determined any question of construction or validity arising under such statute, regulation, municipal ordinance, contract, deed, will, franchise, or other article, memorandum, or instrument in writing, or any part thereof, and obtain a declaration of rights, status, or other equitable or legal relations thereunder.

      . During the first day and a half of trial, the parties attempted to reach a settlement agreement. On appeal, the Homeowners argue that the trial court erred in failing to enforce the alleged settlement agreement reached by the parties. I would find this argument without merit.

      . Although not necessary to my conclusion on this point, I would note that the Homeowners’ argument that they were denied due process when the trial court considered the City's "surprise” renewed motion to dismiss without notice has merit.

      . "The Florida Declaratory Judgment Act, chapter 86, Florida Statutes (2009), is remedial in nature and should be broadly construed.” Garcia, 99 So.3d at 544.

      . In contrast, RNA did not allege special damages sufficient to maintain suit. The second amended complaint alleges that the RNA is a “homeowners association representing the interests of its members who are concerned with protecting and preserving the residential neighborhood in the area of and adjacent to the illegal private yacht basin.” Homeowners who do not live on the Mahi Waterway cannot argue that they suffer special damages resulting from Amace's activity. Had the issue not been waived, and if a declaratory judgment proceeding required special damages, I would have affirmed as to RNA.

      . In relevant part, Count II states as follows:
      If the court declares (in Count 1) that (1) the private yacht basin is operating contrary to the city's zoning regulations and (2) the city acted contrary to the requirements of its zoning regulations when it failed to close the illegal private yacht basin, plaintiffs request that the court grant permanent injunctive relief that would enjoin the operation of the private yacht basin which is the subject of this action.

      . Specifically, the sole reference made by the City to Trianon in its Answer Brief is as follows: "As the court found, municipalities have discretion as to enforcement of its codes. See Trianon Park Condo. Assoc. v. City of Hialeah, 468 So.2d 912 (Fla.1985) (enforcement of law by regulatory officials such as building inspectors is discretionary).” (Answer Brief, p. 27). "In order to be preserved for further review by a higher court, an issue must be presented to the lower court and the specific legal argument or ground to be argued on appeal or review must be part of that presentation if it is to be considered preserved.” Tillman v. State, 471 So.2d 32, 35 (Fla.1985).

      . The majority distinguishes the Florida Supreme Court's opinion in Fortunato v. City of Coral Gables, 47 So.2d 321 (Fla.1950), by stating that it pre-dated Trianon and did not consider the principle of separation of powers. In Boucher, however, the Court explained that in Fortunato the plaintiff "carefully and in thorough detail delineated special and peculiar damages to himself which resulted from the violation of the setback requirements by his next door neighbor,” which entitled him to proceed in equity. Boucher, 102 So.2d at 136. More significantly, Fortunato is still good law and the fact that it pre-dates Trianon is of no moment because the Florida Supreme Court does not overrule itself sub silentio. Arsali v. Chase Home Fin. LLC, 121 So.3d 511 (Fla.2013); see Puryear v. State, 810 So.2d 901 (Fla.2002).


source: Caselaw Access Project

author: SHEPHERD, C.J.

license: Public Domain

text:
    RC ALUMINUM INDUSTRIES, INC., etc., Appellant, v. REGIONS BANK, et al., Appellees.
    No. 3D11-2488.
    District Court of Appeal of Florida, Third District.
    Dec. 4, 2013.

      Robert P. Frankel, Miami, and Ralph Mora, for appellant.
    Stearns Weaver Miller Weissler Alha-deff & Sitterson and Mark P. Dikeman, Miami, for appellees.
    Before SHEPHERD, C.J., and SALTER, and EMAS, JJ.
   SHEPHERD, C.J.

This is an appeal by RC Aluminum Industries, Inc. (“RC Aluminum”) from an order dismissing with prejudice its first amended complaint, seeking to impose an equitable lien on construction loan proceeds and for unjust enrichment. A casual perusal of the order makes it apparent that the trial court went beyond the four corners of the complaint in reaching its decision. See Lewis v. Barnett Bank of S. Fla., N.A., 604 So.2d 937, 938 (Fla. 3d DCA 1992) (“On a motion to dismiss, the trial court is necessarily confined to the well-pled facts alleged in the four corners of the complaint and contrary to the defendant’s argument, is not authorized to consider any other facts....”). “A motion to dismiss a complaint is not a motion for summary judgment in which the court may rely on facts adduced in depositions, affidavits, or other proofs.” Barbado v. Green & Murphy, P.A., 758 So.2d 1173, 1174 (Fla. 4th DCA 2000) (quoting Mancher v. Seminole Tribe of Fla., Inc., 708 So.2d 327, 327 (Fla. 4th DCA 1998)).

In addition, based upon our review of the first amended complaint, it appears RC Aluminum may have a good-faith basis to allege a claim for equitable lien. The factual circumstances may show that the lender, Regions Bank, exercised affirmative deception on RC Aluminum to keep it on the job; thus, the basis for an equitable lien may rest upon material misrepresentation, fraud, mistake, or unjust enrichment. See Gancedo Lumber Co., Inc. v. Flagship First Nat’l Bank of Miami Beach, 340 So.2d 486, 487 (Fla 3d DCA 1976); see also Williams v. Bear Stearns & Co., 725 So.2d 397, 400 (Fla. 5th DCA 1998) (stating a claim for unjust enrichment is not barred by the existence of an adequate remedy at law).

Regarding RC Aluminum’s allegations that Regions Bank failed to comply with section 713.3471(2), Florida Statutes (2008), any resultant statutory liability of Regions Bank to the extent of allegedly undisbursed loan proceeds is expressly limited to a claim by a “contractor” (and not by a “subcontractor” such as RC Aluminum). Sections 713.3471(2)(b); 713.01(8) (defining “contractor”); and 713.01(28) (defining “subcontractor”). We do not reach the question of whether Region’s Bank alleged failure to provide the statutory notice to RC Aluminum may provide the basis for an equitable lien.

Reversed and remanded for proceedings consistent herewith.


author: EMAS, J. SHEPHERD, C.J.,

text:
    Craig TOLL, Appellant, v. Chris KORGE, Appellee.
    No. 3D11-897.
    District Court of Appeal of Florida, Third District.
    Dec. 4, 2013.
    Richard C. Klugh, P.A. and Richard C. Klugh, Fort Lauderdale, for appellant.
    Coffey Burlington, P.L., and Kendall B. Coffey and Benjamin H. Brodsky, Miami, for appellee.
    Before SHEPHERD, C.J. and ROTHENBERG and EMAS, JJ.
   EMAS, J.

Craig Toll (“Toll”) appeals from a final Order Granting Renewed Motion for Default and a Final Default Judgment entered against him on the basis of discovery violations. For the reasons that follow, we vacate the Final Default Judgment and remand for an evidentiary hearing.

FACTS AND BACKGROUND

Chris Korge, the plaintiff below, filed an eight-count complaint against Toll, as well as Claudio Osorio, Amarilis Osorio, and InnoVida Holdings, LLC, (collectively the “Defendants”), seeking damages and in-junctive relief. Toll was InnoVida’s Chief Financial Officer. Claudio Osorio was the Chief Executive Officer, chairman, and eighty-five percent owner of InnoVida. Amarailis Osorio is Claudio’s wife and was a director/officer of InnoVida.

Korge’s claims arise from his purchase of shares in InnoVida. Korge alleged, inter alia, that he made substantial cash investments in InnoVida which were fraudulently induced and subsequently misappropriated by the Defendants. The complaint alleged causes of action for, inter alia, fraudulent misrepresentation, negligent misrepresentation, and conversion. Korge also sought the appointment of a receiver to oversee InnoVida.

Together with the complaint, Korge filed a motion to expedite discovery, requests for production, and an emergency motion for status conference. At a hearing held on September 27, 2010, the trial court granted Korge’s request for expedited discovery and ordered Defendants to respond to the requests for production by October 7, 2010. The court also ordered Toll and Claudio Osorio (“Osorio”) to submit to deposition by October 18, 2010.

Korge set the Toll and Osorio depositions for October 14 and 15, 2010. On October 8, 2010, counsel for Toll and Oso-rio advised Korge that neither Toll nor Osorio would appear for deposition, prompting Korge to file a motion to compel. On October 12, 2010, the court held a hearing on the issue, as well as on Defendants’ failure to timely produce documents. Toll was not in attendance at the October 12 hearing. The court ordered Toll and Osorio to appear for depositions, noting they would be subject to a show cause order if they did not appear. The court also ordered Defendants to produce all responsive documents, including actual bank statements allegedly confirming the location and existence of approximately $39 million being held in the Cayman Islands.

Toll and Osorio failed to appear for their scheduled depositions, and Korge sought the issuance of a show cause order. The court granted the motion and ordered that Toll and Osorio personally appear before the court on October 18, 2010 to each show cause why they should not be held in contempt or be subject to sanctions. Neither Toll nor Osorio appeared at the show cause hearing, though their attorney attended the hearing, advising the court that Toll was traveling out of the country during the date of his previously-scheduled deposition. The depositions were rescheduled for October 21 and 27, 2010.

The court held another hearing on October 19, 2010 on Korge’s motion to compel responses to request for production and on Defendants’ objections to the requests. The court overruled Defendants’ objections to Korge’s request for production and ordered Defendants to immediately produce all responsive documents, including InnoVida’s check registers, bank statements and credit card statements. Though Defendants produced some documents the following day, they did not produce any records evidencing the company’s supposed cash position.

Toll appeared for his deposition on October 21, 2010 and testified as follows: (i) he had not been out of the country during his prior scheduled deposition, and in fact had no knowledge of the court order requiring him to appear for it; (ii) he was unaware that the attorney representing him and Osorio represented to the court that Toll did not appear for such deposition because he was out of the country; (iii) he had never before seen any of the court’s prior orders pertaining to depositions, discovery’ or attendance at hearings; (iv) the first time he met his attorney and discussed anything about this case was on October 20, 2010 — the day prior to his deposition but subsequent to several of the court’s orders; and (v) he had no access to Inno-Vida’s Cayman bank statements because they were held by one of InnoVida’s subsidiaries.

On December 7, 2010, the trial court held a non-evidentiary hearing in response to Korge’s emergency motion for default and for sanctions against Toll and Osorio. The court concluded that the Defendants violated the court’s orders and rulings on no less than seven separate occasions. It found these violations to be willful and in bad faith, with the intent to deceive and obstruct Korge’s legitimate discovery efforts. The court did not grant the requested default, but awarded Korge attorney’s fees and costs incurred as a result of Defendants’ misconduct. On February 17, 2011 a hearing was held on a subsequent motion to compel filed by Korge. Korge once again sought production of InnoVida’s verified bank statements, and the court again ordered that Toll and Osorio produce the statements-this time by February 21, 2011. Defendants failed to produce the documents and Korge filed a renewed motion for default. This motion was a mere one and one-half pages in length, asserting the following ground as the basis for renewing its request for default: that the Defendants failed “to produce certified copies of InnoVida’s bank statements and personal financial records for Defendants Osorio and Amarilis by February 21, 2011.”

On March 1, 2011, the trial court held a hearing on the renewed motion for default. As was the case at the December 7, 2010 default hearing, the court took no testimony and received no evidence. At the conclusion of the March 1 hearing, the trial court found that the Defendants willfully disregarded the court’s orders in their failure to attend depositions and produce documents, resulting in the delay of the discovery process.

On March 3, 2011, the court entered an eleven-page order that mirrored, nearly word for word, the proposed order submitted by Korge. The order granted Korge’s renewed motion for default against all Defendants and entered a final default judgment against all Defendants in the amount of $4,012,500. The trial court’s order generally referred to the Defendants in the collective. The only individualized findings attributed to Toll were his failure to appear for deposition and his failure to produce the InnoVida bank statements. The order failed to make any factual findings as to whether the conduct was attributed to Toll’s counsel rather than to Toll himself.

Toll thereafter engaged new and separate counsel to represent him and filed a motion for reconsideration and a request for an evidentiary hearing. In that motion, Toll repeated the assertions made during his deposition testimony — namely, that prior counsel never made Toll aware of the discovery requests or the court’s various orders compelling discovery; the first time he met his prior attorney (who represented both Toll and Osorio) was on October 20, the day before Toll’s deposition; Toll never advised his prior attorney that he was out of the country and unavailable for deposition on a previous date set for his deposition; and Toll did not have access to InnoVida’s Cayman Island bank account or the bank statements. In the motion for reconsideration, Toll alleged that Osorio had hired Toll as a CFO but restricted Toll’s access to certain financial information, including the bank statements which were the subject of the request for production. Toll alleged there was a conflict of interest between himself and Oso-rio, and that prior counsel had kept Toll “in the dark,” representing only the interests of Osorio. Toll also alleged that the trial court failed to make the necessary findings as required by Kozel v. Ostendorf, 629 So.2d 817 (Fla.1993) and its progeny. Toll requested the trial court to conduct a hearing to consider this evidence. The trial court denied the motion for reconsideration, and this appeal followed.

ANALYSIS

It is well established in Florida “that determining sanctions for discovery violations is committed to the discretion of the trial court, and will not be disturbed upon appeal absent an abuse of the sound exercise of that discretion.” Ham v. Dunmire, 891 So.2d 492, 495 (Fla.2004) (citing Mercer v. Raine, 443 So.2d 944, 946 (Fla.1983)). Dismissing an action for failure to comply with discovery orders is “the most severe of all sanctions which should be employed only in extreme circumstances.” Id. Where a trial court fails to make express written findings of fact to support a conclusion that a party’s failure to obey court orders demonstrates willful or deliberate disregard, the dismissal of such action constitutes an abuse of discretion. Id. (citing Commonwealth Fed. Savings & Loan Ass’n. v. Tubero, 569 So.2d 1271 (Fla.1990)). In Ham, the Supreme Court explained:

Express findings are required to ensure that the trial judge has consciously determined that the failure was more than a mistake, neglect or inadvertence, and to assist the reviewing court to the extent the record is susceptible to more than one interpretation. While no magic words are required, the trial court must make a finding that the conduct upon which the order is based was equivalent to willfulness or deliberate disregard.
Moreover, to ensure that a litigant is not unduly punished for failures of counsel, the trial court must consider whether dismissal with prejudice is warranted.

Ham, 891 So.2d at 496. (Internal quotations omitted).

The Supreme Court has articulated a six-factor analysis to determine whether a dismissal with prejudice is an appropriate sanction due to an attorney’s behavior:

1) Whether the attorney’s disobedience was willful, deliberate, or contumacious, rather than an act of neglect or inexperience;
2) Whether the attorney has been previously sanctioned;
3) Whether the client was personally involved in the act of disobedience;
4) Whether the delay prejudiced the opposing party through undue expense, loss of evidence, or in some other fashion;
5) Whether the attorney offered reasonable justification for noncompliance; and
6) Whether the delay created significant problems of judicial administration.

Kozel, 629 So.2d at 818. See also Deutsche Bank Nat Trust Co. v. Cagigas, 85 So.3d 1181 (Fla. 3d DCA 2012). The Kozel factors ensure that a sanction is directed towards the party responsible for the error or misconduct and that dismissal is “reserved for those aggravating circumstances in which a lesser sanction would fail to achieve a just result.” Id.

While the record certainly establishes a persistent pattern of foot-dragging and failure to comply with court orders, we are compelled to conclude the trial court abused its discretion in striking Toll’s pleadings and granting a default judgment against him in the absence of compliance with the requisite procedures outlined in Ham and Kozel, in order to justify the extreme sanction imposed. The trial court failed to hold an evidentiary hearing and failed to make the necessary findings under Kozel, rendering it impossible to determine whether the Defendants’ collective dilatory conduct was personally attributable to Toll, to another defendant, or to Toll’s counsel.

For example, in the court’s March 3, 2011 order memorializing the granting of Korge’s default motion, it stated that the Defendants (referred to collectively) “willfully disobeyed” court orders, “testified falsely,” and “made false representations” to the court. However, the absence of an evidentiary record, the lack of explicit findings as to Toll, personally, and the concomitant failure to analyze the Kozel factors, especially as they pertain to Toll’s prior counsel, render the order fatally insufficient and prevent meaningful review to determine whether the sanction imposed is commensurate with the personal conduct of Toll. Each defendant engaged in discrete conduct (or misconduct) with regard to this litigation and had entirely different roles in InnoVida, thus placing them in dissimilar (and perhaps antagonistic) positions with regard to discovery, access to and control over the requested documents, and their respective stakes in the litigation.

CONCLUSION

Accordingly, we vacate the final default judgment and remand for an evidentiary hearing and consideration of the Kozel factors. If, on remand, the trial court determines that dismissal is appropriate, the trial court shall include in its written order findings of fact with respect to each factor, and individualized findings with regard to the conduct of each of the sanctioned parties and their counsel.

ROTHENBERG, J., concurs.

SHEPHERD, C.J.,

dissenting.

I respectfully dissent. The majority opinion portrays one reading of the facts of this case. The detailed and thorough eleven-page order rendered by the trial court portrays another. Utilizing the pertinent standard set forth in Mercer v. Raine, 443 So.2d 944, 946 (Fla.1983)—which, as opposed to the standard in Kozel v. Ostendorf, 629 So.2d 817, 818 (Fla.1993), applies when the discovery misconduct is attributable to the litigant rather than his attorney — I conclude the trial court properly exercised its discretion in finding that Craig Toll had demonstrated a deliberate and contumacious disregard of the authority of the court. Mercer, 443 So.2d at 946.

As in Mercer, here, “[tjhere was no showing that the defendant either attempted to comply with the discovery order[s] or communicated any explanation or excuse to the court.” Id. Although Toll testified in his first deposition, taken on October 21, 2010, that he was not in possession of requested documents relating to InnoVida Holdings, he acknowledged as CFO he had the ability to request the documents directly from the subsidiary. Additionally, at the receivership hearing on November 5, 2010, at which Toll was present, his attorney strongly suggested Toll was aware of all prior court orders. Despite the issuance of an additional two orders compelling production after his first deposition, Toll made no effort to request the documents by the time of his second deposition on December 15, 2012. For five or six months before the default final judgment was entered, both Toll and his attorney knew Toll was in breach of his responsibilities. Thus, even if Toll had a defense prior to October 21, 2010, he did not after that date.

Although the record suggests Defendant’s counsel contributed to the delay in the discovery proceedings, the court ultimately found the individual parties responsible for the non-compliance. An order striking a defendant’s pleadings and entering a default is reviewed for abuse of discretion. Mercer, 443 So.2d at 945. There is substantial competent evidence to support the decision of the trial court to strike the pleadings of all the individual defendants in this case, including Mr. Toll.

I would affirm the order striking pleadings and the final judgment.

      . During this period of the proceedings be- ■ low, Toll and Osorio were represented by the same attorney.

      . Counsel’s representations regarding Toll’s whereabouts on the date of the scheduled deposition, and his failure to appear for the deposition, appear to have been based upon information provided by Osorio, not by Toll. As will be seen infra, the dual representation of both Toll and Osorio, and Toll’s subsequent assertion that his counsel never notified him of the trial court’s orders (including that he appear at deposition or appear in court) plays a significant role in our analysis.

      . Although Korge's renewed motion was premised upon the failure to produce documents, Korge argued the cumulative nature of the actions of Defendants. With regard to Toll’s failure to appear at deposition, Korge’s counsel argued at the hearing (and in the face of Toll’s deposition testimony to the contrary) that Toll had engaged in misrepresentation with regard to his whereabouts during his previously-scheduled deposition. Korge’s counsel argued to the court:
      And Mr. Toll, who was also under the order — and just to tell you, I was there that morning for the deposition of Mr. Toll. He didn't show. His attorney, misinformed by the clients to be sure, I’m not imparting any misrepresentation to the attorney, represented that both men were out of the country and that’s why they could not appear. Of course it turned, out that Craig Toll was in South Florida, unbeknownst to the attorneys. Many would say that for the clients, the defendants to make a misrepresentation that’s material like that to the court as part of disobeying a Court order is incredibly serious.
      (Emphasis added).
      However, as described earlier in this opinion, Toll had already explained during his October 21, 2010 deposition that he never advised his attorney that he was out of the country and unavailable for the previously-scheduled deposition. Toll also stated in his deposition that his attorney had never notified him of any court orders requiring him to appear for any deposition other than the deposition taken on October 21.

      . Although the trial court's order contains several references to testimony given by Toll during his October 21 deposition, there is nothing in the record to suggest that the trial court was in fact provided with the entire transcript of Toll’s deposition testimony or considered such testimony in its decision on Korge's renewed motion for default.

      . With regard to the production of the Inno-Vida Cayman Island bank statements, Toll had testified at his deposition that he did not have (and was never given) access to those documents or any information regarding that bank account.

      . This is exacerbated by the lingering questions regarding a potential or actual conflict of interest between Toll and Osorio (and therefore, any conflict in prior counsel's dual representation).

      . Unlike Osorio — InnoVida's controlling owner who had a central role in the operations and records of InnoVida (and, likely, ready access to the documents repeatedly requested by Korge) — Toll asserted that he had significantly less control over the company and restricted access to documents and information. There was no evidence presented to demonstrate that the failure to produce the requested documentation was willful conduct attributable to Toll, rather than due to factors beyond Toll’s control.


author: PER CURIAM.

text:
    Michael Demetrice BLATCH, Appellant, v. The STATE of Florida, Appellee.
    No. 3D13-2310.
    District Court of Appeal of Florida, Third District.
    Dec. 4, 2013.
    Rehearing Denied Jan. 6, 2014.
    Michael Demetrice Blateh, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before ROTHENBERG, LAGOA and EMAS, JJ.
   PER CURIAM.

Affirmed. See Jones v. State, 569 So.2d 1234, 1238 (Fla.1990).


text:
    Steve ILARION, Appellant, v. The STATE of Florida, Appellee.
    No. 3D13-2536.
    District Court of Appeal of Florida, Third District.
    Dec. 4, 2013.
    Steve Ilarion, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SALTER, FERNANDEZ and LOGUE, JJ.
   PER CURIAM.

We affirm based upon the meticulous, well-reasoned and well-written order of the trial judge.

Affirmed.


author: BENTON, J.

text:
    STATE of Florida, Appellant, v. Jonathan David WILLIAMS, Appellee.
    No. 1D12-6046.
    District Court of Appeal of Florida, First District.
    Dec. 5, 2013.

      Pamela Jo Bondi, Attorney General, and Jay Kubica, Assistant Attorney General, Tallahassee, for Appellant.
    Rick Sichta, Jacksonville, for Appellee.
   BENTON, J.

The state appeals an order granting, on ineffective assistance of counsel grounds, Jonathan Williams’ motion under Florida Rule of Criminal Procedure 3.850, and ordering a new trial on a charge of aggravated battery. A prior order definitively answers the question whether there is a reasonable probability that filing a pretrial motion under the “Stand Your Ground Law” would have changed the result of the aggravated battery prosecution: The state never appealed the earlier order — granting immunity from prosecution on a related murder charge — and the prior order stands for that reason. But the lower court erred in denying the state’s request for an evidentiary hearing, before determining that trial counsel’s failure to file a pretrial motion to dismiss the aggravated battery charge fell below constitutional standards. We vacate the order under review, and remand for an evidentiary hearing on that narrow question.

I.

Mr. Williams stood trial for second-degree murder for the January 25, 2008 shooting death of Buddy Pickett; and for aggravated battery of Audrey Johns, a bystander struck in the leg by shrapnel. At a jury trial over which Judge Wilkes presided October 12-15, 2009, Mr. Williams claimed self-defense. In an unsuccessful motion for judgment of acquittal, trial counsel argued Mr. Williams acted in self-defense in shooting Mr. Pickett; and further that, for that reason, the transferred intent allegedly underlying the aggravated battery on Ms. Johns was not proven beyond a reasonable doubt. Found guilty as charged on both counts, Mr. Williams’ motion for new trial, in which he first raised Florida’s “Stand Your Ground Law,” was also denied.

On direct appeal, the murder conviction was overturned on grounds that the trial court’s instruction on manslaughter by act was fundamentally erroneous. See State v. Montgomery, 39 So.3d 252 (Fla.2010); Williams v. State, 50 So.3d 1207, 1207-08 (Fla. 1st DCA 2010). Although Mr. Williams argued on direct appeal that he was entitled to a new trial on the charge of aggravated battery, as well, because of the defective manslaughter instruction, we reversed and remanded “for a new trial on the second-degree murder charge only.” Id. at 1208.

On remand, trial counsel filed a motion to dismiss “the Information filed in this cause” on the basis of immunity from prosecution under section 776.032, Florida Statutes (2007). At a hearing on the motion, Mr. Williams testified (consistently with his trial testimony) about Mr. Pickett’s threats and threatening behavior both immediately prior to the shooting, and in the more remote past. Other witnesses testifying regarding Mr. Pickett’s reputation for violence corroborated the defendant’s report of the victim’s reputation in this regard.

Relying on the “Stand Your Ground Law,” Judge Skinner ruled that Mr. Williams was presumed to have been in reasonable fear of imminent death or great bodily harm to himself or another, and that the law deemed his use of deadly force justified. He concluded Mr. Williams demonstrated by a preponderance of the evidence that he had reason to believe Mr. Pickett was in the process of forcibly entering Mr. Williams’ dwelling unlawfully when he shot him. Granting the motion to dismiss, Judge Skinner modified the judgment and sentence to eliminate the conviction and sentence for second-degree murder, but did not address the aggravated battery. No appeal was taken.

Instead, Mr. Williams moved for arrest of judgment as to the aggravated battery conviction, citing Brown v. State, 84 Fla. 660, 94 So. 874, 874 (1922) (“If the killing of the party intended to be killed would, under all the circumstances, have been excusable or justifiable homicide upon the theory of self-defense, then the unintended killing of a bystander, by a random shot fired in the proper and prudent exercise of such self-defense, is also excusable or justifiable.”), Nelson v. State, 853 So.2d 563, 565 (Fla. 4th DCA 2003) (agreeing Nelson “should have been entitled to transfer his theory of self-defense to defend against the transferred intent crime”), and V.M. v. State, 766 So.2d 280, 281 (Fla. 4th DCA 2000) (“Where self-defense is a viable defense to the charge of battery on an intended victim, the defense also operates to excuse the battery on the unintended victim.”). But Judge Skinner concluded that “[bjecause Defendant’s conviction and sentence on the count of Aggravated Battery were affirmed on [the original direct] appeal, the Court d[id] not have jurisdiction to consider Defendant’s Motion for Arrest of Judgment,” and denied the motion on that basis.

Mr. Williams then filed his initial Rule 3.850 motion, arguing that the aggravated battery conviction should be set aside, because the state’s ability to prove transferred intent terminated, as a matter of law, when the second-degree murder charge was dismissed. Denying this motion, the trial court reported finding “no case law supporting or espousing a 3.850 nullification principle or rule,” and ruled that dismissal of the second-degree murder charge did not render the aggravated battery conviction legally inconsistent with dismissal of the murder charge. The trial court’s order stated, however, that Mr. Williams was “not precluded by this Order from filing a legally sufficient and timely Motion for Post Conviction Relief pursuant to Florida Rule of Criminal Procedure 3.850, e.g. possible violation of Defendant’s Sixth Amendment right to counsel. Any such motion must be filed no later than January 13, 2013.”

II.

On November 7, 2012, Mr. Williams did file a second Rule 3.850 motion, the grant of which occasioned the present appeal by the state. The motion alleged trial counsel had been ineffective for failure to move before trial to dismiss the aggravated battery charge and seek immunity under the “Stand Your Ground Law.” The motion argued Mr. Williams was prejudiced by trial counsel’s failure to file the motion prior to trial “given that the motion to dismiss was later filed and granted as to the homicide charge, after the Aggravated Battery charge had already been affirmed on direct appeal.”

Here, as below, the state argues there were tactical reasons not to seek a pretrial determination of immunity: Trial counsel had once said that the primary reason for not filing a pretrial immunity motion was to avoid disclosing its theory of defense. But the trial court rejected this putative strategy — failing to file a “winnable” motion for immunity from prosecution in order to “surprise” the prosecution at trial with testimony (from state witnesses) that had already been fully developed on deposition — as implausible and below professional standards. The trial court did not, however, conduct an evidentiary hearing.

On December 13, 2012, Judge Skinner, determining trial counsel had rendered ineffective assistance of counsel, granted the Rule 3.850 motion and ordered a new trial on aggravated battery. The order stated that “if not for the fact that the case was reversed and remanded solely on the Second Degree Murder conviction, the practical effect of the Court’s order granting Mr. Williams’ immunity motion would have been to nullify Mr. Williams’ Aggravated Battery conviction as well.” The order continued, stating that

the law regarding the proper procedure for handling pre-trial immunity motions ... in the First District was crystal clear pursuant to the First DCA’s decision in Peterson v. State, 983 So.2d [27,] 29 (Fla. 1st DCA 2008).... While accepting that there may be strategic decisions not to file a preliminary motion, the Court does not believe these asserted strategies outweigh the substantial benefit afforded to a defendant by filing a preliminary motion for immunity under Florida’s Stand-Your-Ground law.... [T]he preliminary hearing gives defendant an additional opportunity to avoid a conviction prior to going to trial. Moreover, the burden of proof at a preliminary hearing is lower for defendants, who need only “a preponderance of the evidence” to prove their claim of immunity.

The order concluded that the failure to file a pretrial motion seeking immunity under the Stand Your Ground Law appeared to be the result of oversight and inattention rather than any strategic or tactical decision. Based on the later decision granting the Stand Your Ground motion and dismissing the second-degree murder charge, Judge Skinner ruled it could not be said that Mr. Williams was not prejudiced in the aggravated battery case by trial counsel’s failure to file the motion prior to trial.

III.

“Under Strickland, a defendant is prejudiced by his counsel’s deficient performance if ‘there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’” Porter v. McCollum, 558 U.S. 30, 40, 130 S.Ct. 447, 175 L.Ed.2d 398 (2009) (quoting Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052. Here, the prejudice prong is satisfied as a matter of law, given that the “Stand Your Ground” motion filed before retrial of the murder charge proved dispositive on that count.

In Judge Skinner’s words, “the practical effect of the Court’s Order granting Mr. Williams’ immunity motion would have been to nullify Mr. Williams’ Aggravated Battery conviction as well” if not for the fact that the case had been reversed and remanded solely as to the second-degree murder conviction. The state has never contended that Ms. Johns’ flesh wound from ricocheting shrapnel evinced anything other than Mr. Williams’ intent to fell Mr. Pickett. In short, Mr. Williams established a reasonable probability, sufficient to undermine confidence in the outcome of the aggravated battery prosecution, that, but for counsel’s failure to file a pretrial motion for immunity, the result of the proceeding would have been different.

IV.

The state is not precluded by the failure to appeal the grant of immunity on the murder charge, however, from litigating whether trial counsel rendered deficient performance of the kind required to satisfy the second prong of an ineffective assistance claim. There are, to be sure, portions of the record that fully support the trial court’s conclusion that trial counsel’s “failure to raise the preliminary immunity motion appears to be the result of oversight and inattention rather than any strategic decision.”

We have no quarrel with the trial court’s analysis of the status of the “Stand Your Ground Law” at the time of trial, and understand its refusal to accept trial counsel’s misstatement of the law then in effect. On the present record, indeed, we well understand the trial court’s skepticism about trial counsel’s stated reasons for failure to file a motion to dismiss the charges prior to trial. See Butler v. State, 84 So.3d 419, 421 (Fla. 5th DCA 2012) (“It is well established, in a number of contexts, that ‘a tactical or strategic decision is unreasonable if it is based on a failure to understand the law.’” (citation omitted)). We therefore reject the state’s arguments that the record establishes that trial counsel’s decision not to file a “Stand Your Ground” immunity motion was “a reasoned, reasonable and strategic one,” and that the order on appeal should be reversed and remanded with directions to deny the motion for postconviction relief.

But, particularly in light of representations by trial counsel, the state is entitled to an evidentiary hearing on the narrow issue of whether failing to file a motion for immunity pretrial under the “Stand Your Ground Law” amounted to deficient performance. See Jackson v. State, 789 So.2d 1218, 1220 (Fla. 1st DCA 2001) (“As this court has explained, ‘the determination of whether defense counsel’s actions were tactical is a conclusion best made by the trial judge following an evi-dentiary hearing.’ ” (quoting Rosemond v. State, 634 So.2d 259, 260 (Fla. 1st DCA 1994))). See also Jacobs v. State, 880 So.2d 548, 551 (Fla.2004). The state — like the defendant, when the shoe is on the other foot — is entitled to an evidentiary hearing on whether trial counsel’s performance was constitutionally deficient. See State v. De Armas, 988 So.2d 156, 158 (Fla. 3d DCA 2008) (reversing the order granting a 3.850 motion because the “State was entitled to ... an evidentiary hearing to test De Armas’s eligibility to withdraw his plea” based on trial counsel’s alleged failure to properly warn of possible immigration consequences of his plea); State v. Vega, 983 So.2d 748, 749 (Fla. 3d DCA 2008) (holding the trial court “should have held an evidentiary hearing” on the assertion in a Rule 3.850 motion that Vega was not informed of deportation consequences of his plea and noting that an “evidentiary hearing would allow the trial court to evaluate the State’s evidence”); State v. Holmes, 929 So.2d 719, 720-21 (Fla. 5th DCA 2006) (“Because it is possible that counsel’s decision not to request instruction on the lesser offense of voluntary manslaughter was a valid strategic decision, the trial judge should have at least afforded the State an opportunity to challenge Holmes’ allegations at an evidentiary hearing.”); State v. Watson, 921 So.2d 774, 775 (Fla. 4th DCA 2006) (“Without an evidentiary hearing, there is no evidence that Watson’s counsel’s failure to object to the seating of the jurors in question was not a strategic decision on his part.”).

Before determining whether or not trial counsel’s decision to forgo an immunity hearing was a genuine strategic decision and whether the decision “fell below an objective standard of reasonableness” as measured under prevailing professional norms, see Strickland, 466 U.S. at 688, 104 S.Ct. 2052, the trial court should conduct an evidentiary hearing.

V.

Because the state was entitled to and in fact asked for an evidentiary hearing on the question whether trial counsel’s failure to file a pretrial motion seeking “Stand Your Ground” immunity from prosecution for aggravated battery fell below the standards for effective assistance of counsel, the order on appeal is vacated, and the matter is remanded with directions that an evidentiary hearing on the question be held.

Vacated and remanded.

THOMAS and CLARK, JJ., concur.

      . Mr. Williams also argued on direct appeal that he was entitled to a new trial on the charge of aggravated battery because the state's circumstantial evidence was legally insufficient to rebut his hypothesis that Ms. Johns was struck by a shot fired by someone else.

      .Sometimes referred to as the "Stand Your Ground Law,” section 776.032(1), Florida Statutes (2007), provides that a "person who uses force as permitted in s. 776.012, s. 776.013, or s. 776.031 is justified in using such force and is immune from criminal prosecution and civil action for the use of such force, unless the person against whom force was used is a law enforcement officer ... who was acting in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person was a law enforcement officer.”

      . Mr. Williams also presented testimony suggesting he responded to an initial gunshot fired by someone else.

      . Judge Skinner found it noteworthy, in the order on appeal, that a review of the "Court’s Order Granting Defendant’s 'Motion for Determination of Immunity from Prosecution and Motion to Dismiss’ reflects a substantial amount of inconsistencies in the State witnesses' own accounts of the events that evening, as well as substantial inconsistencies between the physical evidence and the testimony.”

      . Mr. Williams filed first a motion for reconsideration, then a notice of appeal, before the trial court ruled on the motion for reconsideration. On October 12, 2012, Mr. Williams’ appointed counsel filed a notice of voluntary dismissal of the appeal of the denial of the first Rule 3.850 motion, and a motion requesting this court relinquish jurisdiction. We denied the motion, ruling that pendency of the earlier appeal did not divest the trial court of jurisdiction to consider a postconviction motion raising new grounds.
      On December 17, 2012, Mr. Williams’ appointed counsel filed a second notice of voluntary dismissal of the appeal of the order denying the initial Rule 3.850 motion, based on the order granting the second postconviction motion. We dismissed the appeal from the order on the first motion on December 19, 2012. On the same date, Mr. Williams filed a motion in the trial court to dismiss the aggravated battery charge based on immunity pursuant to section 776.032, Florida Statutes (2007), and Florida Rule of Criminal Procedure 3.190(b).

      . The state also argued that, when trial counsel moved for judgment of acquittal at the close of the state's case-in-chief on the basis of self-defense and the Stand Your Ground Law, Judge Wilkes denied the motion, and the fact that Judge Skinner “came to a different conclusion and perceived the evidence and testimony of the witnesses differently than the judge and jury did in the prior trial d[id] not in and of itself create prejudice under Strickland [v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)] nor d[id] it show counsel's performance was deficient.”

      . On the authority of the United States Supreme Court’s decision in Strickland, 466 U.S. at 694, 104 S.Ct. 2052, the Florida Supreme Court has held that for an ineffective assistance of counsel claim to be successful, two requirements must be met.
      First, the defendant must establish that counsel’s performance was deficient. Second, the defendant must establish that counsel's deficient performance prejudiced him or her.
      To establish deficiency under Strickland, the defendant must prove that counsel’s performance was unreasonable under "prevailing professional norms.” To establish prejudice, the defendant must prove that "there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.”...
      There is a strong presumption that the performance of trial counsel was not ineffective. To fairly assess attorney performance, every effort must be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of the challenged conduct, and to evaluate the conduct from the perspective of counsel at the time. The defendant bears the burden to "overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.' ”

        Floyd v. State, 18 So.3d 432, 443 (Fla.2009) (citations omitted). See also Occhicone v. State, 768 So.2d 1037, 1048 (Fla.2000) ("[Sjtrategic decisions do not constitute ineffective assistance of counsel if alternative courses have been considered and rejected and counsel’s decision was reasonable under the norms of professional conduct.”).

      . The ruling that Mr. Williams was prejudiced with regard to the aggravated battery charge is thus off the table, as a matter of law, although we need not go so far as to invoke the doctrine of collateral estoppel. See State v. McBride, 848 So.2d 287, 290-91 (Fla.2003) ("Collateral estoppel is a judicial doctrine which in general terms prevents identical parties from relitigating the same issues that have already been decided. Under Florida law, collateral estoppel, or issue preclusion, applies when the identical issue has been litigated between the same parties or their privies. In addition, the particular matter must be fully litigated and determined in a contest that results in a final decision of a court of competent jurisdiction. Although collateral estoppel generally precludes relitigation of an issue in a subsequent but separate cause of action, its intent, which is to prevent parties from rearguing the same issues that have been decided between them, applies in the postconviction context.” (internal quotations & citations omitted)).

      . In closing argument at the November 2011 immunity hearing, trial counsel indicated he tended not to believe Mr. Williams’ statement that someone first shot at him until he later "started going through the witness statements.” Although trial counsel referred to the "newness” of the law, section 776.032 was enacted in 2005-four years before Mr. Williams' trial. While trial counsel stated there was an “utter lack of case law on the matter,” Judge Skinner correctly observed that at the time of Mr. Williams’ trial, the law in the First District regarding the proper procedure for handling pre-trial immunity motions "was crystal clear” pursuant to Peterson v. State, 983 So.2d 27, 29 (Fla. 1st DCA 2008) (holding that the trial court may not deny a pretrial motion for immunity simply because factual disputes exist).

      . At the beginning of the August 2011 hearing on the motion for immunity, defense counsel stated: "We would like the court to at least consider it [the motion] in that the strategic — last time not just bringing it up because we wanted to bolster our defense. We were going to proceed to trial. But now that the cat’s out of the bag, so to speak, we desire to have this motion heard by Your Honor.”
      In a motion for reconsideration of the order denying the initial 3.850 motion, trial counsel stated: "To reiterate, the reason for not raising initially was strategic: the newness of the Stand Your Ground Law, the utter lack of case law on the matter, and, most importantly, to avoid divulging the defense.” See Lawrence v. State, 969 So.2d 294, 309 (Fla.2007) ("Strategic decisions do not constitute ineffective assistance if alternative courses of action have been considered and rejected and counsel’s decision was reasonable under the norms of professional conduct.”).


text:
    Robert SNIPE, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-3658.
    District Court of Appeal of Florida, First District.
    Dec. 5, 2013.
    David A. Henson, Special Assistant Public Defender, North Carolina, for Petitioner.
    Pamela Jo Bondi, Attorney General, and Brittany Rhodaback, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking a belated appeal of the judgment and sentence rendered on or about March 21, 2013, in Escambia County Circuit Court case number 2011 CF 001095 A, is granted. Upon issuance of mandate, a copy of this opinion shall be furnished to the clerk of the lower tribunal for treatment as a notice of appeal. If petitioner qualifies for the appointment of counsel at public expense, the lower tribunal is directed to appoint counsel to represent him in the belated appeal authorized by this opinion.

PADOVANO, ROWE, and OSTERHAUS, JJ., concur.


text:
    CENTENNIAL BANK, Appellant, v. NFP 1, LLC, An Administratively Dissolved Florida Limited Liability Company, Walter J. Armistead, James Barrs Floyd, and Heron Walk Harbor Homeowners Association, Inc., Appellees.
    No. 1D13-4516.
    District Court of Appeal of Florida, First District.
    Dec. 5, 2013.
    Kenneth B. Bell, Stephen A. Pitre, William E. Bond, Jr., and Trevor A. Thompson, of Clark, Partington, Hart, Larry, Bond & Stackhouse, Pensacola, for Appellant.
    Nicholas Yonclas, Eastpoint, for NFP1, LLC and Walter J. Armistead; James Barrs Floyd, pro se, Tallahassee, for Ap-pellees.
   PER CURIAM.

The Court has determined that the July 15, 2013, Final Judgment is not a final order as it fails to resolve Count II of the complaint, a related claim for damages for breach of the associated note. Therefore, this appeal from the July 15, 2013, Final Judgment is premature. Cf. Conti v. B & E Holdings, LLC, 61 So.3d 1272 (Fla. 1st DCA 2011) (dismissing appeal as premature where order on appeal entered a money judgment but reserved jurisdiction to resolve the related mortgage foreclosure action). Accordingly, appellee’s motion to dismiss, filed on September 26, 2013, is granted, and the appeal is hereby dismissed.

PADOVANO, ROWE, and OSTERHAUS, JJ., concur.


text:
    Micah LAMB, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-4430.
    District Court of Appeal of Florida, First District.
    Dec. 5, 2013.
    Micah Lamb, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Donna A. Gerace, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

DISMISSED. All pending motions are denied.

WOLF, VAN NORTWICK, and CLARK, JJ., concur.