text:
    JEDAK CORPORATION d/b/a Razzle's, Appellant, v. SEABREEZE OFFICE ASSOCIATES, LLC and Neil Hunter, Appellees.
    Case No. 5D16-3777
    District Court of Appeal of Florida, Fifth District.
    Opinion filed May 25, 2018
    Cynthia B. Beissel, and F. Bradley Hassell, of Hassell-Legal, P.A., Daytona Beach, for Appellant.
    Thomas A. Valdez, of Quintairos, Prieto, Wood & Boyer, P.A., Tampa, and Michael J. Reilly and Gabriel Dobrin, of Law Offices of James W. Kehoe, Fort Lauderdale, for Appellee, Seabreeze Office Associates, LLC.
    No Appearance for Other Appellee.
    ON MOTION TO VACATE ORDER, STAY ISSUANCE OF MANDATE, AND ACCEPT AND CONSIDER APPELLEE'S AMENDED MOTION FOR REHEARING OR REHEARING EN BANC AND APPELLEE'S AMENDED MOTION FOR CLARIFICATION, REHEARING OR REHEARING EN BANC
   PER CURIAM.

Fourteen days after our opinion issued in this case, Appellee, Seabreeze Office Associates, LLC, filed an "emergency" motion seeking an extension of time within which to file a motion for rehearing and other "post-opinion" motions. The "emergency" motion stated that Appellant could not agree to any extension of time. We assume that Appellee's counsel, Thomas A. Valdez, was unaware that the mere filing of this motion tolled the time for filing of the motions for which he sought an extension. See Fla. R. App. P. 9.300(b). We base this assumption on three facts. First, Appellee labeled the motion an "emergency" when in fact no exigency existed given the automatic tolling. Second, on the next business day following the filing of the motion for extension of time, a Monday, Appellee's counsel's staff called our clerk's office expressing a sense of urgency for a decision on the motion. Finally, when counsel did not receive an order by close of business on that Monday, he filed a "Motion for Clarification, Rehearing or Rehearing En Banc ." That motion was filed two minutes after midnight on the date counsel apparently believed the motions were due, suggesting that counsel worked into the late night to meet what he apparently believed was the actual due date. The motion contained no indication that it was incomplete or that further time was needed to refine the motion.

Absent a meritorious objection from Appellant, the panel would probably have granted Appellee's motion for extension of time for filing a motion for rehearing. However, it is doubtful that any such extension would have included a carte blanche for the filing of unspecified "post-opinion" motions. Nevertheless, because Appellee filed the motion for clarification, rehearing or rehearing en banc within the tolling period, we accepted the filing as timely and treated the requested extension as moot. Accordingly, we addressed the merits of the motion. To the extent Appellee sought clarification or rehearing, we denied the motion on the merits. As for the request for rehearing en banc , the panel concluded that it was not legally sufficient and struck that portion of the motion.

Pursuant to Florida Rule of Appellate Procedure 9.331(d)(1), there are only two bases for requesting rehearing en banc : (1) that the case or issue is of exceptional importance or (2) that rehearing is necessary to maintain uniformity in the court's decisions. If the request is based on the latter, rule 9.331(d)(2) requires the movant to specifically cite the decisions with which the movant believes the panel opinion conflicts. Although Appellee's motion contained a certificate of counsel that the panel opinion was "contrary to the decision(s) of this Court," that certificate did not list the allegedly conflicting decisions, in violation of rule 9.331(d)(2). In the body of the motion, Appellee alleged that our panel opinion "overlooked and misapplied the controlling law as discussed in the previous sections." In fact, neither "controlling law" nor any decision of this Court (much less a purportedly conflicting decision) was cited anywhere within the text of the motion. Instead, Appellee cited a Third District case, which the panel opinion had expressly addressed, and a secondary source, which relied upon a federal case said to be "governed by" a federal statute. Accordingly, the representation that our panel opinion conflicted with "controlling law" and the certification of counsel that our panel opinion conflicted with other decisions of this Court were false. The very reason rule 9.331(b) requires a "certification" of counsel is to prevent the abuse of this rule by placing the ethical onus on counsel to verify and separately certify compliance.

After our disposition of its motion for clarification, rehearing or rehearing en banc , Appellee filed the instant "Motion to Vacate Order, Stay Issuance of Mandate, and Accept and Consider Appellee's Amended Motion for Rehearing or Rehearing En Banc ." This motion seeks a redo of Appellee's motion for clarification, rehearing or rehearing en banc based upon what Appellee labels "extraordinary circumstances." Appellee contends that its first motion for clarification, rehearing or rehearing en banc was "hurriedly filed" and that it was "forced to discontinue further work on the motion" due to counsel's apparent perception that this Court had been dilatory in ruling on Appellee's request for extension of time. Accordingly, Appellee now asks this Court to vacate its orders on Appellee's motion for extension of time and motion for clarification, rehearing or rehearing en banc and instead rule on its amended motion for clarification, rehearing or rehearing en banc , which it filed after this Court denied the first motion for clarification, rehearing or rehearing en banc .

Most troubling in the motion is Appellee's irrelevant assertion that the fault for the perceived time crunch lies with "the Clerk" with whom counsel's staff purportedly had a telephone conversation. During this conversation, which ostensibly occurred on Monday, April 30, 2018, the person with whom counsel's staff spoke allegedly informed counsel's assistant that an order on the motion for extension of time "was being circulated and that the Court would rule on the Motion that day ." (Emphasis added). On its face this allegation is inherently implausible. Motions such as this circulate electronically among three judges. If the motion was indeed "circulating," it would be nearly impossible for any person in the clerk's office to know when a ruling would be forthcoming. Nevertheless, Appellee's assertion triggered an exhaustive internal review in our already overburdened clerk's office. All staff members were queried and, as might be predicted, none recalled speaking with counsel's office on Monday and all denied having informed counsel's office when a ruling would be issued. Regardless of what transpired between someone in the clerk's office and counsel's staff, counsel's perceived need to "hurriedly" complete the motion and "discontinue further work" on the motion for clarification, rehearing or rehearing en banc was obviously the product of counsel's lack of familiarity with the tolling provision of rule 9.300(b), rather than information supplied by the clerk's office.

Accordingly, Appellee's motion seeking relief from our prior orders is denied. Further, because Appellee filed an amended motion for clarification, rehearing or rehearing en banc in violation of rule 9.330(b) and without leave of court, it is stricken.

Counsel for Appellee, Thomas A. Valdez, shall show cause in writing within five days why sanctions should not be imposed pursuant to section 57.105, Florida Statutes, and this Court's inherent authority, for violations of rule 9.331 and for filing the instant motion, which the Court considers frivolous. The Court reserves jurisdiction to require counsel to personally appear before the Court should the written explanation not be satisfactory. Appellant shall file no response unless ordered or unless leave of court is requested and granted.

To clarify and emphasize for the benefit of litigants and counsel, the clerk's office does not give legal advice. The clerk's office does not make predictions about when the Court will render a ruling, the contents of that ruling, or the internal progress or status of a matter that is pending before this Court. Accordingly, litigants and counsel should not request this information from the clerk's office. Rulings of this Court are rendered in writing and, if the exigencies of the ruling dictate, may be immediately published to the litigants and counsel orally but only after a written ruling is rendered.

MOTIONS DENIED; SHOW CAUSE ORDER ENTERED.

COHEN, C.J., PALMER and TORPY, JJ., concur.

      The request for rehearing consisted primarily of prohibited re-argument in violation of established precedents from this Court. See , e.g. , McDonnell v. Sanford Airport Auth. , 200 So.3d 83 (Fla. 5th DCA 2015) ; Godoy v. State , 99 So.3d 613 (Fla. 5th DCA 2012) ; Amador v. Walker , 862 So.2d 729 (Fla. 5th DCA 2003). Similarly, while the motion expressed disagreement with the opinion, it failed to identify any ambiguity necessitating clarification. See Fla. R. App. P. 9.330(a).

      Only conflicting opinions of this Court-an intradistrict conflict-support the application for en banc review. Fla. R. App. P. 9.331(d)(2) ; Finney v. State , 420 So.2d 639, 641 (Fla. 3d DCA 1982).

      It is unclear whether Appellee's reference is to the Clerk of Court or to an unnamed deputy clerk.

      While Appellee made another troubling assertion concerning a purported statement by an unnamed deputy clerk that occurred after Appellee filed the first motion for clarification, rehearing or rehearing en banc , because this purported statement obviously did not induce the filing of that motion, we need not address it.

      In substance, the amended motion for clarification, rehearing or rehearing en banc is no more informative or relevant than the first one. It is essentially prohibited re-argument. Although Appellee added an additional contention to its application for en banc review-that the case is of "exceptional importance"-this bare-bones conclusion is insufficient to invoke review on this ground. A rehearing en banc is an "extraordinary proceeding." Fla. R. App. P. 9.331(d)(2). Appellee never challenged the correctness of the precedent from our sister court upon which the panel relied. Its entire argument is predicated on the contention that we misapplied that precedent to the unique facts of this case. The panel opinion merely concludes that Appellee failed to prove that the breach of the particular provisions of this contract caused damages. The assertion that the panel opinion meets this narrow "exceptional importance" standard is specious.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Dearrell WILLIAMS, Appellant, v. FLORIDA DEPARTMENT OF CORRECTIONS, Appellee.
    No. 1D17-4833
    District Court of Appeal of Florida, First District.
    May 25, 2018
    Marie A. Mattox, Tallahassee, for Appellant.
    Kenneth S. Steely, General Counsel, M. Lilja Dandelake, Assistant General Counsel, Department of Corrections, Tallahassee, for Appellee.
   Per Curiam.

Appellant, Dearrell Williams, appeals a Notice of Dismissal of her charge of discrimination filed under Florida's Whistleblower's Act. We agree with Appellant that the Florida Commission on Human Relations erred in dismissing her charge as being untimely when it was filed on Monday, July 3, 2017, the first weekday following the Saturday on which the pertinent sixty-day filing period ended. See Fla. Admin. Code R. 60Y-2.006 ("The mission and duties of the Commission [on Human Relations] are carried out pursuant to statutory authority delineated in Chapter 760, F.S. The following additional statutory chapters and rule chapters directly affect and govern the operations of the Commission: ... (5) Chapters 28-101 through 28-106, 28-108, 28-109, F.A.C."); Fla. Admin. Code. R. 28-106.103 ("In computing any period of time allowed by this chapter, by order of a presiding officer, or by any applicable statute, the day of the act from which the period of time begins to run shall not be included. The last day of the period shall be included unless it is a Saturday, Sunday, or legal holiday, in which event the period shall run until the end of the next day which is not a Saturday, Sunday, or legal holiday ." (Emphasis added)). In agreeing with Appellant, we find the reliance Appellee, the Department of Corrections, places upon Florida Administrative Code Rule 60Y-5.001(3) to be misplaced. That rule, which provides in part that any document received by the clerk or other agent of the Commission after 5:00 p.m. shall be filed as of 8:00 a.m. on the next regular business day, does not address a situation where the last day of the pertinent filing period falls on a Saturday, Sunday, or holiday.

Accordingly, we REVERSE the Notice of Dismissal and REMAND for further proceedings.

Lewis, Makar, and M.K. Thomas, JJ., concur.


author: Roberts, J.

text:
    Esad KURTANOVIC, Husband, Appellant, v. Zineta KURTANOVIC, Wife, Appellee.
    No. 1D17-202
    District Court of Appeal of Florida, First District.
    May 25, 2018
    Michael M. Giel of Giel Family Law, P.A., Jacksonville, for Appellant.
    No appearance for Appellee.
   Roberts, J.

In this appeal from a final judgment of dissolution of marriage, the former husband raises multiple issues on appeal: (I) the trial court erred when it calculated the equitable distribution award; (II) the trial court erred when it required the former husband to make a lump-sum payment; (III) the trial court erred by imputing income to the former husband when it calculated the alimony payments; (IV) the trial court erred by awarding the former wife retroactive alimony; (V) the trial court erred when it required the former husband to secure the former wife's alimony award with life insurance; (VI) the trial court erred by ordering the former husband's alimony payments to continue past his death; and (VII) the trial court erred in granting the former wife attorney's fees and costs. We find the trial court's equitable distribution scheme contained a mathematical error and remand for correction of the error and otherwise affirm the equitable distribution scheme. We find the trial court erred when it required the former husband to make a lump-sum payment to the former wife as there is no indication in the record that the former husband had the ability to pay such an award. We find no error in the trial court's imputation of income to the former husband and award of alimony and retroactive alimony to the former wife and affirm. We find the trial court erred when it required the former husband to obtain life insurance to secure the former wife's alimony award and when it required the alimony award to extend beyond the former husband's death. Because the parties appear to be on equal financial footing after equitable distribution and the award of alimony, we reverse the trial court's award of attorney's fees and costs to the former wife.

Equitable Distribution

An appellate court reviews a trial court's equitable distribution scheme for abuse of discretion. Stough v. Stough , 18 So.3d 601, 604 (Fla. 1st DCA 2009). The trial court provided a thorough equitable distribution scheme that contains a mathematical error in the initial equalization amount. After distributing the parties' assets and debts, the trial court found that the former husband received $3,739.61 more than the former wife. The record clearly shows that there was only a difference of $1,739.61. Based on the correct difference, the former wife was only entitled to an initial equalizing payment of $869.80 rather than $1,869.80. Therefore, we reverse on this point and remand for the trial court to correct the mathematical error and to reduce the former wife's total equitable distribution equalizing payment by $1,000.00. We otherwise affirm the equitable distribution award. See Ard v. Ard , 765 So.2d 106, 107 (Fla. 1st DCA 2000) (reversing the equitable distribution scheme solely to correct a mathematical error and otherwise affirming the equitable distribution scheme).

Lump-Sum Payment

"[A] lump sum equalizing payment to accomplish equitable distribution 'is properly awarded only when the evidence reflects a justification for such an award and the ability of the paying spouse to make the payment without substantially endangering his or her economic status. ' "

Abramovic v. Abramovic , 188 So.3d 61, 64 (Fla. 4th DCA 2016) (quoting Fortune v. Fortune , 61 So.3d 441, 446 (Fla. 2d DCA 2011) (emphasis added) (quoting Bishop v. Bishop , 47 So.3d 326, 331 (Fla. 2d DCA 2010) ). See also Neal v. Meek , 591 So.2d 1044, 1046 (Fla. 1st DCA 1991) (any required lump-sum payment must be supported by findings of fact demonstrating the payor spouse's ability to make the payment within the contemplated timeframe).

The trial court made no findings with regards to the former husband's ability to pay a lump-sum equalizing payment.

Because there is no indication in the record that the former husband had the ability to make a lump-sum payment within the time frame set by the trial court, we reverse.

Alimony

An appellate court reviews an award of alimony for abuse of discretion. Abbott v. Abbott , 187 So.3d 326, 327 (Fla. 1st DCA 2016). The appellate court reviews the application of the law to the facts of the case de novo and will not reverse an alimony award if it is supported by competent, substantial evidence. Id.

Imputation of Income

When calculating an award of alimony using imputed income, the trial court must find that the party it is imputing income to is (1) underemployed or unemployed and (2) the underemployment or unemployment is not based on a physical or mental incapacity or based on a circumstance that the other party cannot control. McDuffie v. McDuffie , 155 So.3d 1234, 1236 (Fla. 1st DCA 2015). If the trial court finds that a party is unemployed or underemployed, the trial court must impute income. Id.

During the marriage, the former husband started his own trucking business, which provided the majority of the financial support for the parties. During the time the former husband owned his own business, the parties were able to enjoy a comfortable lifestyle. Shortly after the parties separated, the former husband claimed that his last tractor broke down and the repairs were too expensive, causing him to lose his business. He also testified that he could not work in the trucking industry because he had vision problems. The former wife testified that the former husband told her that he was no longer working in the trucking industry in order to avoid paying her alimony. The trial court found the former husband's testimony was not credible.

A trial court can impute income where a spouse has failed to use his or her best efforts to earn income. A claim that a payor spouse has arranged his financial affairs or employment situation so as to shortchange the payee spouse is a valid matter to be explored in determining the payor's real ability to pay.

Smith v. Smith , 737 So.2d 641, 644 (Fla. 1st DCA 1999) (citations omitted).

In determining imputation of income for alimony awards, the courts have applied the same factors as those applied to imputing income for child support. Gray v. Gray , 103 So.3d 962, 967 (Fla. 1st DCA 2012) (citing Smith v. Smith , 737 So.2d 641 (Fla. 1st DCA 1999) ). Section 61.30(2)(b), Florida Statutes (2014), states in relevant part:

Monthly income shall be imputed to an unemployed or underemployed parent if such unemployment or underemployment is found by the court to be voluntary on that parent's part, absent a finding of fact by the court of physical or mental incapacity or other circumstances over which the parent has no control. In the event of such voluntary unemployment or underemployment, the employment potential and probable earnings level of the parent shall be determined based upon his or her recent work history, occupational qualifications, and prevailing earnings level in the community if such information is available.

The trial court found that income should be imputed to the former husband, and there is competent, substantial evidence to support the amount imputed to the former husband based on his 2014 gross business receipts, his business credit card statements, and his business taxes.

The record shows that the former husband's business began to slow down soon after the former wife filed this cause of action on August 1, 2014. Thus, the trial court used the most recent credible income available as required by the statute, and we find that the trial court did not err.

The former husband also challenges the amount of rental property income the trial court attributed to him. The trial court appears to have adopted the former wife's evidence with regards to the rental property income. The former wife's rental property income deducted amounts for homeowner's association fees, insurance, and mortgages. The former husband had the duty to put forth evidence to establish any additional deductions. See Hodge v. Hodge , 129 So.3d 441, 443 (Fla. 5th DCA 2013) (the person claiming that deductions should be made has the duty to establish the deductions for maintenance of the property from the rental property income). Because the former husband failed to put forth competent, substantial evidence to support his claim for additional deductions, we find no error in the trial court's calculations.

We find that the trial court's ruling on the award of alimony is supported by competent, substantial evidence and affirm.

Retroactive Alimony

An award of retroactive alimony must be based on the receiving spouse's need during the retroactive period and the payor spouse's ability to pay during the retroactive period. Abbott , 187 So.3d at 328. Because there is competent, substantial evidence to support the trial court's award of retroactive alimony, we affirm this issue.

Life Insurance to Secure Award of Alimony

The former husband argues that the trial court erred when it required him to obtain life insurance because the former wife did not request her alimony to be secured by life insurance in her pleadings or during the proceedings. We find that it was error for the trial court to require this additional financial burden as the former husband had no notice and was not given the opportunity to present a defense on this issue. See Stalnaker v. Stalnaker , 892 So.2d 561, 563 (Fla. 1st DCA 2005) (trial court did not err in ordering the payor spouse to secure the alimony award by obtaining life insurance since the issue was raised during trial without objection); see also Eisele v. Eisele , 91 So.3d 873, 874 (Fla. 2d DCA 2012) (trial court does not have authority to require a party to obtain life insurance to secure child support payments unless such relief has been requested); Lowe v. Lowe , 789 So.2d 1202, 1202 (Fla. 4th DCA 2001) (trial court erred in ordering the payor spouse to obtain life insurance to secure his alimony payments when the payee spouse failed to request the relief in her motion for contempt). Accordingly, we reverse.

Alimony Beyond Death

An alimony award generally cannot survive the death of the payor spouse. See Zimmerman v. Zimmerman , 766 So.2d 1196, 1196 (Fla. 1st DCA 2000) (a spouse's obligation to pay permanent alimony terminates upon his death); O'Malley v. Pan Am. Bank of Orlando, Nat'l Ass'n , 384 So.2d 1258, 1260 (Fla. 1980) ("[T]he well established rule is that an obligation to pay alimony ceases upon the death of the obligor, unless that person expressly agrees that the estate shall be bound to continue to pay alimony after his death."). Finding no agreement by the former husband to pay alimony after his death, we reverse the trial court's ruling that the former husband's estate is responsible for the former wife's alimony payments upon his death.

Attorney's Fees and Costs

The standard of review for an award of attorney's fees is abuse of discretion. Watson v. Watson , 124 So.3d 340, 343 (Fla. 1st DCA 2013). The primary consideration for an award of attorney's fees and costs is the financial resources available to each party. See § 61.16(1), Fla. Stat. (2014). "The purpose of ... section [61.16(1) ] is to ensure that both parties will have a similar ability to obtain competent legal counsel." Broemer v. Broemer , 109 So.3d 284, 290 (Fla. 1st DCA 2013) (quoting Rosen v. Rosen , 696 So.2d 697, 699 (Fla. 1997) ). An award of attorney's fees and costs should not be granted when the parties are equally able to pay attorney's fees and costs after the court has equally distributed the property and equalized the parties' incomes. Hutchinson v. Hutchinson , 185 So.3d 528, 529 (Fla. 1st DCA 2015). Because the parties' financial resources and income appear to be equal after equitable distribution and the award of alimony, we reverse the trial court's award of attorney's fees and costs to the former wife. On remand, the trial court shall revisit the award of attorney's fees and costs, taking into account the equalization of the parties' financial resources and incomes.

AFFIRMED in part; REVERSED in part, and REMANDED with instructions.

Wetherell and Rowe, JJ., concur.


author: Bilbrey, J.

text:
    FLORIDA CARRY, INC., and Rebekah Hargrove, Appellants, v. John E. THRASHER, an individual, Florida State University, and David L. Perry, an individual, Appellees.
    No. 1D16-3423
    District Court of Appeal of Florida, First District.
    May 25, 2018
    Eric J. Friday of Kingry & Friday, PLLC, Jacksonville, for Appellants.
    Barry Richard of Greenberg Traurig, P.A., Tallahassee, for Appellees.
   Bilbrey, J.

Appellants, Florida Carry, Inc., and Rebekah Hargrove, challenge the trial court's summary final judgment in favor of Appellees John Thrasher, Florida State University (FSU), and David Perry on all issues alleged in Appellants' complaint. We affirm the summary final judgment for Appellees on the issue of FSU's Game Day Plan without further comment. We affirm, as right for the wrong reason, the summary final judgment for Appellees on the challenges to the FSU Student Conduct Code provisions prohibiting certain concealed weapons license (CWL) licensees from possessing certain defensive devices including stun guns as defined by section 790.06(12)(a)13., Florida Statutes (2015) (hereinafter "defensive devices"), on FSU's campus. We affirm the summary final judgment for President Thrasher and Chief Perry individually regarding the FSU Student Conduct Code's prohibition of lawful possession of firearms in vehicles, as being the correct result as to President Thrasher and Chief Perry, although we disagree with the trial court's reasoning. We reverse the summary final judgment for FSU regarding the FSU Student Conduct Code's prohibition of lawful possession of firearms in vehicles, and we remand for further proceedings as set forth below. Finally, we affirm the trial court's order denying Appellants' post judgment motion to disqualify the trial judge.

Background

Appellant Florida Carry is a Florida not for profit corporation and its stated purpose is to protect the rights of its members to keep and bear arms. Appellant Ms. Hargrove is a member of Florida Carry, an FSU student, and a CWL licensee. See § 790.06, Fla. Stat. (2015) (allowing specified law-abiding persons age 21 or older to apply for a license to carry concealed weapons or firearms subject to restrictions). Appellee FSU is a public university and part of the State University System of Florida. Appellee President Thrasher is the president of FSU, and Appellee Chief Perry is the chief of the FSU police department and assistant vice president for public safety.

The FSU Student Conduct Code prohibits, in part:

6. Weapons
a. On-campus possession or use of firearms, antique firearms, explosives, destructive devices, or other weapons or dangerous articles or substances, including but not limited to non-lethal weapons such as pellet guns, bb guns, paintball markers, slingshots, crossbows, stun guns, Tasers, metallic knuckles, archery equipment, swords, sword canes, ornamental or decorative swords/daggers/knives, or any dangerous chemical or biological agent. Note: This section does not apply to any law enforcement officer who is a student or to any student ROTC member acting under the supervision of an ROTC unit in a manner proscribed (sic) by military regulations of the United States Government, or any student whose possession of a weapon as described above is approved by the FSU Police Department for a bona fide educational purpose.

Appellants filed the complaint on September 8, 2015. The complaint alleged the FSU Student Conduct Code violated section 790.33, Florida Statutes (2015), which-with certain exceptions not applicable here-preempts regulation of firearms by entities other than the Florida Legislature. Appellants' complaint cited our decision in Florida Carry, Inc. v. University of North Florida , 133 So.3d 966 (Fla. 1st DCA 2013) (en banc) ( UNF ), in support of their contention that the promulgation of certain portions of the Student Conduct Code violated Florida law.

Appellants alleged in the complaint that Appellees knew or should have known that they were "without authority to regulate the possession of firearms on the FSU campus." Appellants further asserted that FSU improperly prohibited Ms. Hargrove and certain other CWL licensees from carrying specified defensive devices including stun guns while on FSU's campus and improperly prohibited lawful possession of firearms in vehicles.

The parties entered into a stipulation one week after Appellants filed suit. In the stipulation, Appellees agreed that during the pendency of the litigation Appellees would not "detain, arrest, or discipline" a student, FSU employee, or faculty member who held a CWL and possessed a defensive device as described in section 790.06(12)(a) 13., Florida Statutes (2015). Appellees also agreed that they would not "detain, arrest, or discipline any person" for lawfully possessing a weapon or firearm in a private vehicle or lawfully possessing a handgun securely encased in a private vehicle.

The parties did not undertake any discovery but instead filed motions for summary final judgment. Chief Perry submitted an affidavit in support of Appellees' motion where he attested that prior to the UNF decision, "FSU, like other Florida colleges and universities, believed they were authorized by Section 790.115(2)(a)3, Florida Statutes, to waive the requirement that persons be permitted to keep guns in motor vehicles on school property." Chief Perry's affidavit also stated that since he became FSU's police chief in 2006, "FSU has not arrested, prosecuted, or disciplined, or threatened to take such action, against anyone for violation of Florida laws relating to firearms or other weapons." President Thrasher also submitted an affidavit in support of summary judgment. Appellants did not submit any affidavits regarding the summary judgment motions.

After a hearing on the competing motions, the trial court issued an order granting Appellees' motion for summary judgment on all issues. The trial court concluded that the exceptions in section 790.115(2)(a), which permit certain weapons on school property, did not include an exception for electronic weapons or devices. The trial court therefore concluded that FSU could ban defensive devices including stun guns as stated in the Student Conduct Code. The trial court also concluded that the claim regarding FSU's prohibition on possession of firearms in vehicles was moot because FSU "acted expeditiously" after the UNF decision to "ensure that campus law enforcement personnel were aware of the decision and complied with it."

Appellants then moved to disqualify the trial judge and to vacate the order granting summary final judgment for Appellees. Those motions were denied, and Appellants brought this appeal.

Our Prior Caselaw Regarding Firearms on University Campuses

The Florida Legislature has preempted the field of regulation of firearms through the language in section 790.33, Florida Statutes (2015), which reads, in pertinent part:

(1) Preemption.-Except as expressly provided by the State Constitution or general law, the Legislature hereby declares that it is occupying the whole field of regulation of firearms and ammunition, including the purchase, sale, transfer, taxation, manufacture, ownership, possession, storage, and transportation thereof, to the exclusion of all existing and future county, city, town, or municipal ordinances or any administrative regulations or rules adopted by local or state government relating thereto. Any such existing ordinances, rules, or regulations are hereby declared null and void.

Further, section 790.33 more specifically defines the actions prohibited by the statute and also creates potential causes of action for affected parties, as follows:

(3) PROHIBITIONS; PENALTIES.-
(a) Any person, county, agency, municipality, district, or other entity that violates the Legislature's occupation of the whole field of regulation of firearms and ammunition, as declared in subsection (1), by enacting or causing to be enforced any local ordinance or administrative rule or regulation impinging upon such exclusive occupation of the field shall be liable as set forth herein.
* * *
(c) If the court determines that a violation was knowing and willful, the court shall assess a civil fine of up to $5,000 against the elected or appointed local government official or officials or administrative agency head under whose jurisdiction the violation occurred.
* * *
(f) A person or an organization whose membership is adversely affected by any ordinance, regulation, measure, directive, rule, enactment, order, or policy promulgated or caused to be enforced in violation of this section may file suit against any county, agency, municipality, district, or other entity in any court of this state having jurisdiction over any defendant to the suit for declaratory and injunctive relief and for actual damages, as limited herein, caused by the violation. A court shall award the prevailing plaintiff in any such suit:
1. Reasonable attorney's fees and costs in accordance with the laws of this state, including a contingency fee multiplier, as authorized by law; and
2. The actual damages incurred, but not more than $100,000.

This court, in UNF , held that the preemption of the regulation of firearms and ammunition in section 790.33 applies to state universities. UNF , 133 So.3d at 973. We held that public colleges and universities in Florida are not authorized to adopt regulations regarding possession of firearms or ammunition beyond what is provided by statute. Id. at 972. We further held in UNF that a state university is not a "school district" under the exception in section 790.115(2)(a) 3., Florida Statutes, which allows school districts to prohibit otherwise lawful possession of firearms in vehicles. UNF , 133 So.3d at 970-71. We also held that the University of North Florida's Student Conduct Code firearm regulation "qualifies as an administrative rule 'adopted by local or state government,' which the legislature has expressly preempted." Id. at 973 (citing § 790.33(1), Fla. Stat.).

In Florida Carry, Inc. v. University of Florida , 180 So.3d 137, 148-49 (Fla. 1st DCA 2015) (UF ), we held that officers, employees, and agents of the State or its subdivisions were not immune from suit under section 790.33 by operation of the limitation in the waiver of sovereign immunity contained in section 768.28(9)(a), Florida Statutes. However, we agreed that even though sovereign immunity did not apply, the plain language of section 790.33(3)(f) precluded the award of damages against individuals. UF , 180 So.3d at 150-51.

In Florida Carry, Inc. v. City of Tallahassee , 212 So.3d 452, 461-62 (Fla. 1st DCA 2017), we determined that in order for a local ordinance, administrative rule, or regulation to violate section 790.33(a), Florida Statutes, the local ordinance, administrative rule, or regulations had to be enacted or enforced. Furthermore, to pursue the remedies under section 790.33(3)(f), the "ordinance, regulation, measure, directive, rule, enactment, order, or policy" had to be "promulgated or caused to be enforced in violation of this section." City of Tallahassee , 212 So.3d at 462-63. We then went on to hold that mere re-publication of an ordinance or rule is not sufficient to find a violation of section 790.33, Florida Statutes. City of Tallahassee, 212 So.3d at 465.

CWL Licensees' Possession of Defensive Devices on Campus

Appellants sued each Appellee in separate counts claiming violations of section 790.06. The trial court concluded that FSU was correct in banning from campus all defensive devices as described by section 790.06(12)(a) 13. The court relied on section 790.115(2)(a), which states in part:

A person shall not possess any firearm, electric weapon or device, destructive device, or other weapon as defined in s. 790.001(13), including a razor blade or box cutter, except as authorized in support of school-sanctioned activities, at a school-sponsored event or on the property of any school, school bus, or school bus stop ...

In relying solely on this section, the trial court did not give effect to section 790.115(2)(e) ; overlooked section 790.06(12)(a) 13.; and did not follow the often-stated requirement, which we mentioned in UF , that statutes should be read in such a way as to harmonize and reconcile them so as to give effect to all provisions of all statutes if possible. See UF , 180 So.3d at 142.

Section 790.115(2)(e), Florida Statutes (2015), states, "[t]he penalties of this subsection shall not apply to persons licensed under s. 790.06," the CWL statute. Section 790.06(12)(a) in turn states:

A license issued under this section does not authorize any person to openly carry a handgun or carry a concealed weapon or firearm into:
* * *
13. Any college or university facility unless the licensee is a registered student, employee, or faculty member of such college or university and the weapon is a stun gun or nonlethal electric weapon or device designed solely for defensive purposes and the weapon does not fire a dart or projectile ...

Therefore, reading these statutes together, a registered student, employee, or faculty member who possesses a CWL is allowed by Florida law to carry a defined defensive device on campus. The trial court erred in finding that section 790.115(2)(a) applied to Ms. Hargrove, a CWL licensee and FSU student, so as to prohibit her from carrying a defensive device on FSU's campus.

However, the trial court was right for the wrong reason in granting summary final judgment on the issue of the prohibition of defensive devices on campus as set forth in the Student Conduct Code. See Dade County School Bd. v. Radio Station WQBA , 731 So.2d 638, 644 (Fla. 1999) (allowing an appellate court to affirm a trial court decision "if a trial court reaches the right result, but for the wrong reasons" so long as "there is any basis which would support the judgment in the record").

The preemption in section 790.33(1) does not apply to defensive devices; only the regulation of firearms and ammunition is preempted. A firearm "will, is designed to, or may readily be converted to expel a projectile by the action of an explosive." § 790.001(6), Fla. Stat. Ammunition must contain "primer," "[o]ne or more projectiles,"

and "[g]unpowder." § 790.001(19)(a)-(c), Fla. Stat. A defensive device by its definition "does not fire a dart or projectile." § 790.06(12)(a) 13., Fla. Stat. Firearms and ammunition, as defined in section 790.001(6) & (19), Florida Statutes, are clearly distinct from defensive devices as defined in section 790.06(12)(a) 13. The prohibitions and penalties for encroachment on preemption of firearms and ammunition contained in section 790.33(3) do not apply to defensive devices as defined by section 790.06(12) 13. because those devices are not firearms or ammunition.

While the Legislature in section 790.06(15)"finds it necessary to occupy the field of regulation of the bearing of concealed weapons or firearms for self-defense," nothing in section 790.06 creates a cause of action like section 790.33(3) does. "In general, a statute that does not purport to establish civil liability but merely makes provision to secure the safety or welfare of the public as an entity, will not be construed as establishing civil liability." Murthy v. N. Sinha Corp. , 644 So.2d 983, 986 (Fla. 1994) (quoting Moyant v. Beattie , 561 So.2d 1319, 1320 (Fla. 4th DCA 1990) ). Therefore the trial court's summary final judgment in favor of Appellees was correct, although for the wrong reason, as to the Appellees' liability for prohibiting defensive devices by CWL licensees in the Student Conduct Code. The affirmance on this issue does not preclude Appellants from pursuing any cognizable action or challenge to the prohibition of CWL licensees' possession of defensive devices, including an administrative challenge under chapter 120, Florida Statutes. See Hart Properties v. Slack , 159 So.2d 236 (Fla. 1964) ; Mosley v. American Med. Int'l., Inc. , 712 So.2d 1149 (Fla. 4th DCA 1998) (affirming summary judgment but allowing additional proceedings where unsuccessful parties may have valid claims).

The Individual Defendants

The trial court granted summary final judgment in favor of President Thrasher and Chief Perry on all issues. The summary final judgment on the issue of defensive devices by CWL licensees was appropriate as to all Appellees as discussed above. As for FSU's prohibition in the Student Conduct Code on firearms in vehicles, summary final judgment was also correct as to the individuals, but we again disagree with the trial court's reasoning. "Even summary judgment can be affirmed, if right for the wrong reason, where the right reason was adequately presented to the trial court in support of the motion." Samiian v. First Professionals Ins. Co. , 180 So.3d 190, 194 (Fla. 1st DCA 2015).

In their motion for summary judgment, Appellees argued that "[t]here is no provision for a fine, damages, or other penalty against an individual in absence of evidence that a violation was knowing and willful." Although the trial court's order granting summary final judgment did not address this, Appellees are correct.

In UF , we discussed whether the University of Florida's president could be liable for damages under section 790.33. UF , 180 So.3d at 150-51. We concluded that the specific language in section 790.33(3)(f) permitting suit against "any county, agency, municipality, district, or other entity" did not include a person. UF , 180 So.3d at 150-51. The complaint here also sought injunctive and declaratory relief as allowed by section 790.33(3)(f) against President Thrasher and Chief Perry, but our holding in UF and a plain reading of section 790.33(3)(f) precludes those remedies as to individuals as well.

The complaint also sought statutory fines against President Thrasher and Chief Perry, presumably referring to the civil fine of up to $5,000 as permitted in section 790.33(3)(c). However, such fines can only be assessed against officials for knowing and willful violations of the Legislature's preemption of firearms and ammunition regulation. As stated in Chief Perry's affidavit, and not challenged by any record evidence to the contrary from Appellants, until our UNF decision FSU believed it was permitted to regulate the possession of firearms in vehicles. As further stated in Chief Perry's affidavit, immediately after our UNF decision, FSU undertook action to comply with the decision. The undisputed facts are that any violation by President Thrasher or Chief Perry of the preemption in section 790.33 was not knowing and willful. Summary final judgment in their favor on this issue was therefore correct.

Material Facts as to the Date of Promulgation of the Student Conduct Code Remain as to FSU

The trial court granted summary final judgment in favor of FSU on the issue of the Student Conduct Code's prohibition on possession of firearms in a vehicle. "At the summary judgment stage, a trial court is to enter a judgment only when no issues of fact remain." Citizens Property Ins. Corp. v. Mallett , 7 So.3d 552, 556 (Fla. 1st DCA 2009). "A trial court's ruling on summary judgment is subject to de novo review." Acosta, Inc., v. Nat'l Union Fire Ins. Co., 39 So.3d 565, 573 (Fla. 1st DCA 2010) (citing Castleberry v. Edward M. Chadbourne, Inc. , 810 So.2d 1028, 1029 (Fla. 1st DCA 2002) ). The Code is a regulation per UNF . Id. at 973. The prohibition on the lawful storage of firearms and ammunition in vehicles directly violates UNF . Id. at 977 ; see also §§ 790.06(12)(b), 790.115(2)(a) 3., & 790.25(5), Fla. Stat (2015).

Appellees' answer admitted the improper prohibition in the FSU Student Code at least as to lawful possession of firearms in vehicles. But Appellees' answer also claimed that the statements prohibiting lawful storage of firearms in vehicles "have been reviewed by FSU's general counsel and recommendations are being made to FSU for revisions designed to ensure that the code accurately reflects Florida law" per the UNF decision. The answer continued, "FSU is not enforcing the code to the extent that it is not consistent with Florida law as interpreted by the UNF decision." The trial court concluded that this made the Student Conduct Code issue moot. We respectfully disagree.

"An issue is moot when the controversy has been so fully resolved that a judicial determination can have no actual effect." Godwin v. State , 593 So.2d 211 (Fla. 1992). In UF , we upheld the trial court's finding of mootness because, shortly after our UNF decision, the University of Florida added language to its regulations that "UF would comply with Florida law governing firearms in vehicles." UF , 180 So.3d at 139. Here, Appellants brought suit over a year and a half after UNF , and the FSU Student Conduct Code at the time the complaint was filed still contained regulations contrary to the preemption in section 790.33(1). While FSU may not be enforcing the challenged provisions of the Code, those provisions remain. Accordingly, Appellants' challenge to the Student Conduct Code was not moot.

The trial court did not have our City of Tallahassee decision when it determined that the Student Conduct Code issues were moot. Like this case, in City of Tallahassee the parties stipulated that the ordinance in question had not been enforced for years before suit was brought by Florida Carry. Id. at 456. Also like here, the ordinance in City of Tallahassee remained "on the books" as part of the Tallahassee City Code. Id. at 462. The provisions of the FSU Student Conduct Code which attempt to impose regulations beyond what is permitted by statute are clearly void per section 790.33(1). Since the mere re-publication of an ordinance, rule, or regulation is not sufficient to find a violation of section 790.33, Florida Statutes, per City of Tallahassee , the question which remains is when the FSU Student Conduct Code was enacted or promulgated. Id. at 465. The sparse record before us leaves us unable to answer that question. Therefore our de novo review finds material facts remain such that the summary final judgment on this issue was error.

Under section 790.33(3)(a), liability exists for "enacting or causing to be enforced any local ordinance or administrative rule or regulation impinging upon such exclusive occupation of the field." Per Chief Perry's affidavit, it is undisputed that the applicable Student Conduct Code provisions have not been enforced since he became chief in 2006. The stipulation entered into by the parties meant the challenged provisions of the Code were not being enforced during the litigation. Therefore the fact question which remains is when was the Student Conduct Code enacted or promulgated so as to permit proceeding per City of Tallahassee . See Ch. 87-23, Laws of Fla. (creating the preemption in § 790.33(1) ); Ch. 2011-109, Law of Fla. (creating the private cause of action under § 790.33(3)(f) ).

During oral argument, Appellants' counsel stated that FSU contended that the Student Conduct Code was enacted in 1986, but he could not find that in the record. We likewise cannot find record support to establish a date when FSU prohibited possession of firearms, which would include a prohibition of possession of firearms in vehicles as otherwise allowed by sections 790.115(2)(a) and 790.25(5). It is therefore necessary to reverse and remand for further proceedings so the trial court can determine when the FSU Student Conduct Code section prohibiting firearms was enacted or promulgated as defined by City of Tallahassee , and accordingly, whether to allow a recovery under section 790.33(3).

Motion to Disqualify

After the order granting summary final judgment was entered, Appellants moved to disqualify the trial judge and to vacate the order granting summary final judgment. The motion alleged that on the date that summary final judgment was granted Appellants discovered from the FSU Foundation website that the trial judge was a "regular and significant" donor to FSU. Appellants also alleged in the motion that the trial judge has "a vested interest in insuring that the funds he donated to the Defendant are not used to pay damages, fines or attorney's fees," and therefore claimed that the trial judge was biased against Appellants. The trial judge rejected the motion to disqualify, and Appellants raise that rejection as their last issue on appeal. We do not address whether the allegations in the motion to disqualify were sufficient because even assuming they were sufficient, the allegations were clearly untimely.

An order denying a motion for disqualification is properly reviewed using a de novo standard. Sume v. State , 773 So.2d 600, 602 (Fla. 1st DCA 2000). A motion to disqualify a trial judge "is considered untimely when delayed until after the moving party has suffered an adverse ruling unless good cause for delay is shown." Fischer v. Knuck , 497 So.2d 240, 243 (Fla. 1986). Appellants offer no explanation as to why they waited until after the trial judge ruled on the competing motions for summary judgment before discovering the public information regarding the trial judge's financial contributions to FSU.

As federal courts have held in considering motions based on publicly available information:

For purposes of timeliness, the applicant is charged with knowledge of all facts "known or knowable, if true, with due diligence from the public record or otherwise." Any other rule would allow a member of a law firm aware of facts that might lead to judicial disqualification to sit on the information, wait to see which way the wind appears to be blowing with the judge, and then come forward in an effort to get rid of the judge if a colleague responsible for a case begins to perceive that the judge is unreceptive to the client's position or even simply wants a delay.

Universal City Studios, Inc., v. Reimerdes , 104 F.Supp.2d 334, 349 (S.D.N.Y. 2000) (quoting Hirschkop v. Virginia State Bar Ass'n , 406 F.Supp. 721, 724 (E.D. Va. 1975) ); see also Huff v. Standard Life Ins. Co. , 643 F.Supp. 705 (S.D. Fla. 1986).

We agree with these federal cases, and therefore agree that the trial judge was correct to reject Appellants' motion to disqualify.

Conclusion

The summary final judgment in favor of all Appellees as to the Game Day Plan is AFFIRMED . The summary final judgment in favor of Appellees on the issue of the prohibition of possession of certain defensive devices including stun guns on FSU's campus even by CWL licensees is AFFIRMED . Appellants may seek whatever other remedies are available to address this issue. The summary final judgment in favor of the individual defendants John E. Thrasher and David L. Perry on the issues of the FSU Student Conduct Code's prohibition of firearms in vehicles is AFFIRMED . The summary final judgment in favor of FSU on the issue of the FSU Student Conduct Code's prohibition of firearms in vehicles is REVERSED and REMANDED for further proceedings. The trial judge's denial of the motion to disqualify is AFFIRMED .

Winokur and Jay, JJ., concur.

      Judge Bilbrey was substituted for an original panel member in this proceeding after oral argument. He has viewed the digital video recording of oral argument.

      Section 790.06(12)(a) 13., Florida Statutes, provides that a CWL does not authorize the licensee to carry a concealed weapon into "[a]ny college or university facility unless the licensee is a registered student, employee, or faculty member of such college or university and the weapon is a stun gun or nonlethal electric weapon or device designed solely for defensive purposes and the weapon does not fire a dart or projectile."

      Section 790.33(3)(c) does provide for a civil fine against the "local government official or officials or administrative agency head under whose jurisdiction the violation occurred" for "knowing and willful" violations. This subsection is discussed below.

      Our decision allows any other available remedy to address this issue. If amendment of the complaint is available, Appellants are free to seek it.

      We decline to determine whether the applicable date for when an ordinance or regulation is enacted or promulgated is enactment or promulgation after Legislative preemption in 1987, or enactment or promulgation after creation of the private cause of action in 2011. This issue is not yet before us, we have not had the benefit of briefing or argument on the issue, and depending on the date of enactment or promulgation of the section at issue in the FSU Student Conduct Code, any difference between the possible dates may be immaterial.


text:
    Charles FRANCIS, Appellant, v. STATE of Florida, Appellee.
    No. 1D16-5244
    District Court of Appeal of Florida, First District.
    May 31, 2018
    Andy Thomas, Public Defender, and Kasey Lacey, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Steven Edward Woods, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Appellant challenges his criminal judgment and sentence, arguing that the trial court erred by not holding a hearing before finding him competent to stand trial. The state responds that Appellant waived his right to a competency hearing because the order finding him competent says that he did.

There are two problems with the state's argument.

First, there is no record support for the trial court's finding of waiver. Although Appellant did not object when the trial court read into the record the report of the court-appointed doctor who evaluated him and found him competent, there is no indication that Appellant affirmatively waived his right to a hearing and the court never gave him an opportunity to present evidence or to be heard on the issue. Cf. Charles v. State , 223 So.3d 318, 329-30 (Fla. 4th DCA 2017) (rejecting defendant's argument that trial court's competency determination did not comport with the rules of criminal procedure because the court provided the defendant a "clear opportunity" to present additional testimony and evidence after the court received and reviewed the court-appointed doctor's report finding the defendant competent).

Second, even if the finding of waiver was supported by the record, the waiver would have been ineffective because Appellant was representing himself below and "it is contradictory to argue that a defendant may be incompetent, and yet knowingly or intelligently 'waive' his right to have the court determine his capacity to stand trial." Reynolds v. State , 177 So.3d 296, 299 (Fla. 1st DCA 2015) (quoting Pate v. Robinson , 383 U.S. 375, 384, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966) ); see also Sheheane v. State , 228 So.3d 1178, 1181 (Fla. 1st DCA 2017) ("The nature of competency goes to the heart of whether a defendant has the capacity to make a cogent, legally binding decision. To find, as the trial court did here, there were reasonable grounds to believe Appellant may be incompetent, and then allow that same potentially incompetent individual to waive his right to determine competency, does not comport with due process.").

Although the trial court erred, we reject Appellant's argument that this error necessarily requires a new trial in this case. "[P]recedent provides that 'a retroactive determination of competency is possible' when 'there are a sufficient number of expert and lay witnesses who have examined or observed the defendant contemporaneous with trial available to offer pertinent evidence at a retrospective hearing,' " Zern v. State , 191 So.3d 962, 965 (Fla. 1st DCA 2016) (quoting Dougherty v. State , 149 So.3d 672, 678-79 (Fla. 2014) ), and we cannot say from our review of the record that a retroactive competency determination would be impossible in this case. Accordingly, as we have done in other cases presenting this error, we reverse and remand for a retroactive determination of competency. See , e.g. , Sheheane , 228 So.3d at 1181. If the trial court is unable to make a retroactive competency determination or if the court determines that Appellant was not competent at the time of trial, a new trial will be required so long as Appellant is and remains competent on remand. Id.

REVERSED and REMANDED with instructions.

Wetherell, Ray, and Osterhaus, JJ., concur.


author: LAMBERT, J.

text:
    Ridge GABRIEL, Appellant/Cross-Appellee, v. STATE of Florida, Appellee/Cross-Appellant.
    Case No. 5D15-2528
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 1, 2018
    James S. Purdy, Public Defender, and Kevin R. Holtz, Assistant Public Defender, Daytona Beach, for Appellant/Cross-Appellee.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Andrea K. Totten, Assistant Attorney General, Daytona Beach, for Appellee/Cross-Appellant.
   LAMBERT, J.

Following a jury trial, Ridge Gabriel was convicted of attempted first-degree murder with a firearm of a law enforcement officer, resisting an officer with violence, attempted robbery with a firearm, and aggravated assault with a firearm. Gabriel was seventeen years old when he committed these crimes. The trial court ultimately sentenced Gabriel to serve twenty years in prison with a twenty-year minimum mandatory provision for the attempted first-degree murder conviction; fifteen years in prison with a ten-year minimum mandatory for the attempted robbery; and 166.5 months in prison, subject to a three-year minimum mandatory, for the aggravated assault with a firearm conviction, with these sentences running concurrently. Gabriel was also sentenced to serve 166.5 months in prison for his resisting an officer with violence conviction, which was to run consecutively to his three concurrent prison sentences.

On appeal, Gabriel argues that his conviction for attempted first-degree murder with a firearm of a law enforcement officer must be reversed because the trial court committed fundamental error when it failed to instruct the jury on a disputed element of this crime. Gabriel does not raise any issue with his other three convictions but challenges the sentences imposed by the trial court for these convictions as either illegal or unconstitutional under Florida's juvenile offender sentencing laws, codified at sections 921.1401 and 921.1402, Florida Statutes (2015). The State cross-appeals, arguing that the trial court erred in providing Gabriel with a review hearing under section 921.1402 after he serves twenty-five years of his aggregate 33.875-year prison sentence. For the following reasons, we reverse Gabriel's conviction and sentence for attempted first-degree murder of a law enforcement officer and remand for a new trial on this charge.

In Ramroop v. State , 214 So.3d 657 (Fla. 2017), an opinion released after the trial in this case, the Florida Supreme Court held that section 782.065, Florida Statutes (2013), created a separate, substantive criminal offense of attempted murder of a law enforcement officer and that to be convicted of this offense, one of the elements the jury must find beyond a reasonable doubt is that the defendant knew, when the offense was committed, that the victim was a law enforcement officer. 214 So.3d at 662-63, 668. The parties agree that, in the instant case, the trial court erred by failing to instruct the jury on this essential element of the crime, but the parties differ as to the significance of this failure to instruct. The State argues that because Gabriel did not object at trial to the jury instruction as given by the trial court, this error is not preserved for appellate review. Gabriel acknowledges that he did not object at trial to this instruction, but he nevertheless asserts that he is entitled to relief because, under the facts of this case, the trial court's failure to properly instruct the jury on this element of the crime is fundamental error.

We first observe that Gabriel, like any defendant, has the right to have a court correctly and intelligently instruct the jury on the essential and material elements of the crime charged and required to be proven. Gerds v. State , 64 So.2d 915, 916 (Fla. 1953). "[Jury] [i]nstructions, however, are subject to the contemporaneous objection rule, and, absent an objection at trial, can be raised on appeal only if fundamental error occurred." State v. Delva , 575 So.2d 643, 644 (Fla. 1991) (citing Castor v. State , 365 So.2d 701, 703 (Fla. 1978) ; Brown v. State , 124 So.2d 481, 484 (Fla. 1960) ). "The failure to give a jury instruction on an element of a crime is fundamental error if the element was disputed at trial." Nash v. State , 951 So.2d 1003, 1005 (Fla. 4th DCA 2007) (citing Garcia v. State , 901 So.2d 788, 793 (Fla. 2005) ; Reed v. State , 837 So.2d 366, 369 (Fla. 2002) ).

Conversely, if the record reflects that there was no dispute on a specific element of the crime, then the failure to instruct on the element is not fundamental error. Delva , 575 So.2d at 645. Therefore, our task is to determine whether there was a dispute at trial as to whether Gabriel knew that the victim of the attempted first-degree murder was a law enforcement officer.

Gabriel's sole defense at trial was misidentification or mistaken identity. The State's theory of the case was that Gabriel was attempting to commit an armed robbery with a firearm in an apartment complex one night when a law enforcement officer noticed the robbery in progress and came to aid the victim of the robbery. At that point, Gabriel turned his firearm toward the law enforcement officer and fired, but missed. Gabriel then fled but was arrested shortly thereafter at a nearby convenience store. In contrast, Gabriel testified at trial that he was at a friend's house that night near the apartment complex and that he left the house after getting into an argument about a basketball game. Gabriel further testified that he walked over to the convenience store where he was surprised to be approached and thereafter arrested by the police. Gabriel denied any knowledge whatsoever of a shooting.

The State argues that by asserting the mistaken identity defense and denying any knowledge about the shooting, Gabriel did not place in dispute the element of the offense that he knew that the victim of the attempted first-degree murder was a law enforcement officer. We disagree. In Griffin v. State , 160 So.3d 63 (Fla. 2015), the court held that a sole defense of misidentification does not concede or fail to place in dispute any element of the crime charged, let alone all elements except identity, nor does the defendant have an obligation to expressly dispute any other elements of the crime. 160 So.3d at 67-68. As the court observed:

Where a defendant sits mute and exercises his or her right to remain silent, the burden is on the State to prove all elements involved in the degree of the homicide for which the defendant is convicted. It defies logic to conclude that expressly disputing the identity of the perpetrator and remaining silent on the remaining elements of the crime would concede all the elements but identity. The State's burden of proof does not change simply because the defendant speaks up and contests one element, such as his identity as the perpetrator.

Id. at 68.

Here, neither Gabriel nor his counsel conceded during trial that an attempted first-degree murder of a law enforcement officer occurred. Cf . Morton v. State , 459 So.2d 322, 324 (Fla. 3d DCA 1984) (holding that trial court's failure to instruct on elements of robbery was not fundamental error when defendant asserted misidentification and defense counsel expressly conceded in opening statement that victims had been robbed). Thus, the issue of whether Gabriel knew that the victim of the attempted first-degree murder was a law enforcement officer remained a disputed element of the offense at trial, and the court's failure to instruct on this essential element of the crime is fundamental error under Ramroop. Gabriel is entitled to a reversal of this conviction and a new trial on this charge.

Gabriel has raised one other issue regarding his conviction for attempted first-degree murder of a law enforcement officer that we will briefly address. At trial, the jury was instructed, without objection, on both attempted premeditated first-degree murder and attempted felony murder, and the jury returned a general verdict of guilty for attempted first-degree murder that did not differentiate between the State's two theories of the crime. Gabriel argues that because he was not specifically charged with attempted felony murder under section 782.051, Florida Statutes (2013), he was potentially convicted of an uncharged crime, which he contends is fundamental error. The State disagrees, arguing that error, if any, was not fundamental and, by failing to object to the jury instruction, Gabriel did not preserve the alleged error for appellate review.

In Weatherspoon v. State , 214 So.3d 578 (Fla. 2017), the Florida Supreme Court concluded that "[b]ecause the statutory crime of attempted felony murder is a crime separate from attempted premeditated murder with different elements and different punishments, the State must charge the crime of attempted felony murder in order to be entitled to a jury instruction on that crime and to proceed under that theory." 214 So.3d at 589. Because we are reversing for a new trial on the attempted first-degree murder of a law enforcement officer charge for the reasons previously stated, we need not address whether or not fundamental error occurred here. On remand, if the State intends to proceed also under an attempted felony murder theory, then it needs to properly charge Gabriel under the statute.

Accordingly, we reverse Gabriel's conviction and sentence for attempted first-degree murder of a law enforcement officer with a firearm and remand for a new trial on this count. Furthermore, because Gabriel's present sentences on his other convictions were based upon a scoresheet that included significant sentence points for the now-vacated conviction for attempted first-degree murder and because the total sentence points on his present scoresheet may greatly change depending upon the result of the retrial on this count, Gabriel will be entitled to be resentenced on his other three convictions under a scoresheet using only his actual convictions. See generally Fernandez v. State , 199 So.3d 500, 502 (Fla. 2d DCA 2016) (holding that when the vacation of a conviction would result in changes to a defendant's scoresheet, the defendant is entitled to be resentenced using a corrected scoresheet). Therefore, we decline to address the parties' arguments regarding Gabriel's present sentences on his other three convictions.

REVERSED and REMANDED.

EVANDER, J., concurs.

EISNAUGLE, J., concur specially, with opinion.

EISNAUGLE, J., concurring specially.

I agree that the supreme court's decisions in Ramroop v. State , 214 So.3d 657 (Fla. 2017) and Griffin v. State , 160 So.3d 63 (Fla. 2015) are controlling here, and that Gabriel's conviction for attempted first-degree murder of a law enforcement officer must be reversed for a new trial. However, given this disposition, I find it unnecessary to join the majority's discussion concerning Gabriel's alternative argument for reversal pursuant to Weatherspoon v. State , 214 So.3d 578 (Fla. 2017).

      The trial court did not have the benefit of this opinion at the time of trial.


text:
    SARASOTA COUNTY SCHOOL BOARD/JOHNS EASTERN COMPANY, INC., Appellants, v. Alice BROCKMAN, Appellee.
    No. 1D17-2259
    District Court of Appeal of Florida, First District.
    June 4, 2018 Rehearing Denied July 27, 2018
    Ben H. Cristal and Marko A. Crespo of Cristal Hanenian, Tampa, for Appellants.
    Kimberly A. Hill, of Kimberly A. Hill, P.L., Fort Lauderdale, for Appellee.
   Per Curiam.

In this workers' compensation case, the Employer/Carrier (E/C) appeals an order of the Judge of Compensation Claims (JCC) awarding Claimant temporary partial disability (TPD) benefits and associated penalties, interest, costs, and attorney's fees (PICA). We reverse and remand, for the reasons that follow.

Claimant, a school custodian with almost thirty years of employment with the school board, was within six months of the date her full retirement would vest. She had incurred various compensable injuries while working for the school board, and also had some ongoing disciplinary issues (absenteeism and poor performance assessments), when she sustained the compensable injury at issue on May 19, 2016. Upon Claimant's post-injury return to work, her Employer was able to accommodate her work restrictions and she received her full salary. Within five months, however, she retired (on the very day she vested). She has not worked since retirement or reached maximum medical improvement (as of the date of the final hearing). She subsequently filed the instant claim seeking TPD benefits and PICA.

The E/C contested the claim, arguing that Claimant's retirement was an intervening cause that broke the chain of causation between her compensable injuries and her loss of earnings. The JCC rejected this argument, finding that Claimant's retirement was not entirely voluntary and so was the equivalent of termination (a finding not challenged here), and that "the accident is the major contributing cause of her lost wages."

But the JCC, in her (otherwise quite thorough) order, did not expressly determine whether the termination was an intervening cause that broke the causal connection between the compensable injuries and the loss of earnings. See generally Wyeth/Pharma Field Sales v. Toscano , 40 So.3d 795, 803 (Fla. 1st DCA 2010) ("[T]he cause of a claimant's displacement from employment and wages, once established, remains the cause unless an intervening or superseding cause is established."). We hesitate to infer a finding on this matter in the absence of underlying findings about the circumstances of the termination.

The JCC recited Claimant's testimony that she was terminated due to absences that might or might not have related to her compensable injuries. The JCC also recited testimony of Claimant's supervisor that the termination was due to insufficient job performance that, again, might or might not have related to her work restrictions. But the JCC neither accepted one witness over the other, nor determined whether either absences or poor performance were due to work restrictions.

Although the JCC wrote that the "loss of earnings was caused by the industrial injury and not by any voluntary limitation of income or voluntary retirement," the JCC did not find that the loss of earnings was not caused by the involuntary retirement (termination) independent of the injury. Accordingly, we remand for the JCC to make a finding, based on the record as it stands, as to whether Claimant left her employment "for unjustifiable reasons." Id. at 802 ("[B]ecause competent substantial evidence supports the JCC's finding that Claimant did not leave her employment as a result of misconduct or for unjustifiable reasons-both valid legal considerations in determining an employee's entitlement to TPD benefits under the statute-the E/SA fails to demonstrate error based on the JCC's consideration of these factors.").

In the event the JCC concludes the termination was an intervening cause, the JCC will review the record for a "means by which a claimant may establish a causal relationship between a claimant's compensable injuries and claimant's temporary partial wage loss," Thayer v. Chico's FAS, Inc. , 98 So.3d 766, 768 (Fla. 1st DCA 2012), and if none are present in the record, to enter judgment for the E/C. If, on the other hand, the JCC instead concludes the separation from employment was for justifiable reasons, the JCC shall enter judgment for Claimant.

REVERSED and REMANDED .

B.L. Thomas, C.J., and Lewis and Makar, JJ, concur.


author: LOGUE, J.

text:
    Ana Lydia GUTIERREZ, Appellant, v. Celino GUTIERREZ, Appellee.
    No. 3D17-1923
    District Court of Appeal of Florida, Third District.
    Opinion filed June 6, 2018
    Raul R. Lopez, for appellant.
    Valdespino & Associates, P.A., and Jacqueline M. Valdespino, for appellee.
    Before ROTHENBERG, C.J., and LAGOA and LOGUE, JJ.
   LOGUE, J.

Ana Lydia Gutierrez appeals an order granting the former husband's motion to set aside a final judgment of dissolution of marriage which was based on a marital settlement agreement. Because the trial court's findings of fraud, misrepresentation, and coercion were not supported by competent substantial evidence, we reverse.

The parties entered into a mediated marital settlement agreement in July 2016 and a final judgment of dissolution of marriage adopting the agreement was entered in September 2016. Nearly two months later, the former husband filed a verified motion to set aside or amend the final judgment.

Following an evidentiary hearing on the matter, the trial court granted the former husband's motion to set aside the final judgment, concluding "that there is fraud, misrepresentation in discovery, and coercion." The trial court's order relies upon the following circumstances: that the former husband's translator for mediation "testified that he is not a certified translator and that he did not translate the Marital Settlement Agreement correctly"; that "there are assets which were excluded from the [agreement]," and the former husband's "former Counsel testified that there was no way to state the value of the assets in the Dominican Republic in the [agreement] because he is not aware of the true value of the asset"; and finally, that the former husband testified "he felt coerced into signing the parties' Marital Settlement Agreement because he was informed by his former counsel that he had to pay to leave mediation."

To set aside a marital settlement agreement, the challenging spouse is "limited to showing fraud, misrepresentation in the discovery, or coercion." Parra de Rey v. Rey, 114 So.3d 371, 386 (Fla. 3d DCA 2013) ; see also Crupi v. Crupi, 784 So.2d 611, 612 (Fla. 5th DCA 2001) ("The inquiry on a motion to set aside an agreement reached through mediation is limited to whether there was fraud, misrepresentation in discovery, or coercion.").

Here, there was no competent substantial evidence presented at the hearing to support the trial court's findings. First, the former husband was free to choose his own interpreter at the time of the mediation, and any misunderstanding he had with his own interpreter does not constitute fraud. Indeed, a party to a marital settlement agreement "is presumed to know what [he] is signing and is charged with the duty of procuring a reliable person to explain the document to [him] prior to [him] signing it." Rivero v. Rivero, 963 So.2d 934, 938 (Fla. 3d DCA 2007). Second, any alleged misrepresentation in discovery came from the nondisclosure of the former husband's own assets, not the former wife's. Finally, evidence of "pressure to settle" is "insufficient proof of coercion necessary to set aside such an agreement." Crupi, 784 So.2d at 614. We reject the former husband's characterization that these matters rise to the level of fraud, misrepresentation, and coercion when they were completely within his control.

Accordingly, we reverse and direct the trial court to reinstate the parties' marital settlement agreement and final judgment of dissolution of marriage.

Reversed.


author: SUAREZ, J.

text:
    CITY OF MIAMI, Appellant, v. FRATERNAL ORDER OF POLICE LODGE #20, etc., Appellee.
    No. 3D17-729
    District Court of Appeal of Florida, Third District.
    Opinion filed June 6, 2018 Rehearing Denied July 24, 2018
    Victoria Mendez, City Attorney, and Kevin R. Jones and Forrest L. Andrews, Assistant City Attorneys, for appellant.
    Buschel Gibbons, P.A. and Robert C. Buschel and Eugene G. Gibbons (Ft. Lauderdale), for appellee.
    Before SUAREZ, LAGOA, and SCALES, JJ.
   SUAREZ, J.

This is an appeal from a final order of dismissal, which upholds an arbitration award against Appellant, the City of Miami (the "City"), in favor of Appellee, the Fraternal Order of Police, Lodge 20 (the "FOP"). The City challenges the Arbitrator's authority to decide whether the City violated a Collective Bargaining Agreement by precluding two police officers, Lieutenant Javier Ortiz and Sergeant Edward Lugo (the "Officers"), from working extra duty (commonly referred to as off-duty) at the Ultra Music Festival ("Ultra"). Because we find that the Arbitrator did not have the authority to hear a dispute concerning extra duty work, and that the City did not waive the issue of whether the Arbitrator had such authority, we hold that the trial court erred in denying the City's motion to vacate and in confirming the award, and we reverse and remand for further proceedings.

BACKGROUND

Prior to 2014, Ortiz and Lugo would routinely sign up to work extra duty at Ultra. During the March 2011 Festival, the Officers were involved in the arrest of Jesse Campodonico, who subsequently sued, alleging that the two Officers used excessive force. An indemnity agreement between the City and Ultra required Ultra to indemnify the City for any negligent acts committed by the City's police officers. In January 2014, Ultra's insurer agreed to pay $400,000.00 to settle Campodonico's claim.

In 2014 and 2015, Ultra contacted the City to request that the Officers not be assigned to work at the 2014 and 2015 festivals. The City agreed to prohibit the Officers from working at Ultra but permitted them to work at any other event during the larger Winter Music Festival. Following the denial of their requests to work at Ultra, both Officers filed grievances. The City denied the grievances, and the parties proceeded to arbitration pursuant to a Collective Bargaining Agreement (the "Agreement").

The City participated in arbitration but argued that the Arbitrator lacked the authority to consider the Officers' grievances because working an extra duty job was not a subject covered under the Agreement. The Arbitrator disagreed and concluded that he had authority to review the Officers' grievances. The arbitration award ultimately sustained the grievances and ordered that the Officers be compensated and allowed to pursue extra duty at future Ultra events. Following the award, the City filed a motion to vacate in the circuit court pursuant to section 682.13(1)(d), Florida Statutes, claiming the Arbitrator exceeded his authority. The court denied the City's motion and granted the Officers' motion to confirm the arbitration award. This appeal follows.

ANALYSIS

A trial court's role in determining arbitrability under the Revised Florida Arbitration Code is limited to the following inquiries: "(1) whether a valid written agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether the right to arbitration was waived." 3A Fla. Jur. 2d Arbitration and Award § 54 ; see also Lucky Star Horses, Inc. v. Diamond State Ins. Co., 233 So.3d 1159, 1161 (Fla. 3d DCA 2017) (citing Seifert v. United States Home Corp., 750 So.2d 633 (Fla. 1999) ). Here, there is no dispute that a valid written agreement to arbitrate exists. We therefore address the remaining two prongs: whether an arbitrable issue exists and whether the City waived its objection to the Arbitrator's authority.

1. Whether an Arbitrable Issue Exists

" Section 682.13(1) sets forth the only grounds upon which an award of an arbitrator in a statutory arbitration proceeding may be vacated ...." Schnurmacher Holding, Inc. v. Noriega, 542 So.2d 1327, 1328 (Fla. 1989) ; see also LeNeve v. Via S. Florida, L.L.C., 908 So.2d 530, 534 (Fla. 4th DCA 2005) ("Where the party moving to vacate fails to prove one of the [statutory grounds set forth in § 682.13(1) ], 'neither a circuit court nor a district court of appeal has the authority to overturn the award.' " (quoting Schnurmacher, 542 So.2d at 1328 ) ). The City relies on section 682.13(1)(d), Florida Statutes (2017), which provides that the court shall vacate an arbitration award if "[a]n arbitrator exceeded the arbitrator's powers ...."

Arbitration is a matter of contract. An arbitrator's authority to conduct an arbitration and the issue(s) to be arbitrated are granted and limited by the operative document(s) in question or by agreement of the parties themselves. The arbitrator exceeds his or her authority by arbitrating any other issues. In the present case, Article 6.8, step 4 of the Collective Bargaining Agreement refers certain grievances to arbitration and limits the Arbitrator's authority to hear only those grievances:

2. The arbitration shall be conducted under the rules set forth in this Agreement and not under the rules of the American Arbitration Association. Subject to the following, the Arbitrator shall have jurisdiction and authority to decide a grievance as defined in this Agreement. The Arbitrator shall have no authority to change, amend, add to, subtract from, or otherwise alter or supplement this Agreement , or any part thereof, or any amendment hereto. The Arbitrator shall have no authority to consider or rule upon any matter which is stated in this Agreement not to be subject to arbitration or which is not a grievance as defined in this Agreement, or which is not covered by this Agreement ; nor shall this Collective Bargaining Agreement be construed by the Arbitrator to supersede any applicable laws.

(Emphasis added). Under this provision, the Arbitrator only has the authority to decide a grievance, as defined in the Agreement. Article 6.2 defines the term "grievance" as follows:

6.2 A grievance is any dispute, controversy or difference between (a) the parties, (b) the City and a bargaining unit member or bargaining unit members on any issues with respect to, on account of or concerning the meaning, interpretation or application of this Agreement or any terms or provisions thereof.

(Emphasis added). In short, the Arbitrator is only given the authority to decide disputes over the meaning, interpretation, or application of the provisions found in the Collective Bargaining Agreement. The Arbitrator is not granted the authority to decide any other disputes. See Schnurmacher, 542 So.2d at 1329 ("[A]n arbitrator exceeds his or her power ... when he or she goes beyond the authority granted by the parties or the operative documents and decides an issue not pertinent to the resolution of the issue submitted to arbitration.").

Nowhere in the Collective Bargaining Agreement is there a provision concerning the privilege of extra duty work. As such, a dispute concerning extra duty work is not a grievance that is subject to arbitration. In the instant case, the Arbitrator found that he had the authority to arbitrate the Officers' grievances by engaging in a creative analysis of material outside of the Collective Bargaining Agreement having to do with extra duty employment. Specifically, the Arbitrator first relied on Article 23 of the Collective Bargaining Agreement-the "Prevailing Benefits" provision-which states that all benefits in effect when the Agreement was entered into, including benefits provided by ordinance , "shall remain in full force and effect for the duration of this Agreement." Because Article 23 refers to "benefits provided by ordinance," the Arbitrator then impermissibly went outside of the four corners of the Collective Bargaining Agreement to section 42-8(a) of the City Code of Ordinances, which essentially states that the chief of police evaluates off-duty requests pursuant to "the factors of existing laws, ordinances, rules and regulations , personnel scheduling availability, risk of harm to personnel, and police department efficiency." (Emphasis added). Based on the "rules and regulations" language from the Ordinance, the Arbitrator looked to a second source outside of the Agreement: Departmental Order 12, which describes the process to sign up for extra duty work. Although the Departmental Order clearly states that "[w]orking special events or extra duty jobs shall be considered a privilege, not a right," (emphasis added) the Arbitrator concluded that extra duty jobs were in fact benefits (despite the explicit wording that extra duty is a privilege). He then concluded that since Article 23 of the Collective Bargaining Agreement covered "Prevailing Benefits," a dispute as to extra duty work would be a grievance under the Collective Bargaining Agreement and subject to arbitration.

We have no difficulty concluding that the Arbitrator exceeded his authority in considering a matter that was not subject to arbitration pursuant to the provisions of the Collective Bargaining Agreement. In order to reach the issue, the Arbitrator went beyond the arbitration provisions of the Collective Bargaining Agreement. The Arbitrator went from the Prevailing Benefits provision within the Agreement-which makes no mention of "extra duty"-to a City Ordinance, and finally to a Departmental Order, both of which are outside of the Collective Bargaining Agreement. Moreover, the Departmental Order explicitly states that extra duty is a privilege and not a right. Consequently, we find that the Arbitrator exceeded his powers. See § 682.13(1)(d), Fla. Stat. But we next must address whether the City waived its objection to the Arbitrator determining the issue of arbitrability. If the City did waive its objection, the Arbitrator's findings must be affirmed even if the Arbitrator did exceed his authority.

2. Whether the City Waived Its Objection to the Arbitrator's Authority

The Officers' primary argument on appeal is that the City waived the issue of arbitrability. We are bound by the rule set forth in Schnurmacher, which states that an arbitration award "cannot be set aside for mere errors of judgment either as to the law or as to the facts; if the award is within the scope of the submission, and the arbitrators are not guilty of the acts of misconduct set forth in the statute, the award operates as a final and conclusive judgment." 542 So.2d at 1328 (quoting Cassara v. Wofford, 55 So.2d 102, 105 (Fla.1951) ). If the City waived arbitrability, we would be compelled to uphold the arbitration award, even if the Arbitrator exceeded his authority under the Agreement. See LeNeve v. Via S. Florida, L.L.C., 908 So.2d 530, 534-35 (Fla. 4th DCA 2005) ("[U]nlike a court's subject matter jurisdiction which cannot be conferred by the parties, an arbitrator's jurisdiction derives from the parties' agreement and can broaden during the course of arbitration by waiver, failure to object and consent." (internal quotation marks omitted) ).

Most cases on waiver in the context of arbitration deal with the more common issue of whether a party waives arbitration by litigation; however, waiver can also work in reverse. That is, a party can waive its ability to litigate by engaging in arbitration. See 92 Am. Jur. Proof of Facts 3d 1 ("Although a court is usually the proper venue for decisions about arbitrability, if the parties clearly and unmistakably submit the issue to the arbitrator without reservation, then the parties have waived their right to have a court make the decision. When the parties to an arbitration agreement have agreed to allow the arbitrator to decide arbitrability, the court should give considerable leeway to the arbitrator, setting aside an award only in certain narrow circumstances.").

In First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995), the United States Supreme Court explained that "[c]ourts should not assume that the parties agreed to arbitrate arbitrability unless there is 'clea[r] and unmistakabl[e]' evidence that they did so." See also Rintin Corp., S.A. v. Domar, Ltd., 766 So.2d 407 (Fla. 3d DCA 2000). In the instant case, the trial court determined that "[t]he City did not waive its objection to the Arbitrator's authority throughout the arbitration proceedings ...." We agree.

The Officers argue that the record "clearly shows" that the City consented to the Arbitrator's authority to decide the issue of arbitrability. They point us to the following exchange at the beginning of the arbitration hearing:

THE ARBITRATOR: My question was not with regard to that, but whether the City is prepared and is basically deferring the question of arbitrability to the Arbitrator?
[THE CITY]: I think it's a legal question. It's not necessarily a factual question. I think the facts in that issue are well-established.
THE ARBITRATOR: I understand that.
[THE CITY]: But we can defer it, if you'd like, and proceed, and we'll bring it up at the end, if you'd like. I mean-
THE ARBITRATOR: I'm prepared to hear evidence with regards to the procedural question of arbitrability, but I need some clarification that indeed the City is deferring the matter of arbitrability for resolution to the Arbitrator.
[THE CITY]: I see. Sure. I'll defer it .

(Emphasis added).

While this statement may seem to indicate that the City waived its objection to arbitrability, the transcript as a whole suggests that the City consistently maintained its position that the Arbitrator was without authority to decide the issue. During the hearing, the City also made the following statements:

But, I think, for the two watershed issues, One, they have to establish that they have a right to this. They have to put on some evidence to demonstrate or show somebody that they had a right that was contravened, if we get beyond the arbitrability part, which I've already agreed that we will move forward and we will reserve on that issue .
....
After you finish [r]edirecting Lieutenant Ortiz, I'd like to call them out of turn, still reserving on the issue of arbitrability and whether or not they've proven anything in regard to a right or a privilege that's arbitrable , they've got to go somewhere else. So I want to get them on the record-

Based on the record evidence as a whole, the City's agreement to defer is far from a "clear and unmistakable" agreement to waive the issue of arbitrability. Instead, the City allowed arbitration to go forward while explicitly and repeatedly reserving on the issue of arbitrability.

The Officers also argue that the City should have done more if it wanted the option to litigate arbitrability. They rely on Infinity Design Builders, Inc. v. Hutchinson, 964 So.2d 752 (Fla. 5th DCA 2007), one of the few Florida cases addressing waiver of litigation by engaging in arbitration. In Hutchinson, Infinity took a number of preliminary steps consistent with its participation in arbitration. Before the actual arbitration, however, it filed an objection, asserting that no arbitration agreement existed between it and Hutchinson. Infinity also moved to stay the arbitration proceedings. Although the circuit court found that the arbitration provision had been struck from the agreement, it denied the motion to stay based on Infinity's participation in the arbitration process. The Fifth District reversed, finding that although Infinity participated, it did not knowingly intend to relinquish its right to litigate because it immediately acted to enforce its rights once it knew that the contract did not contain an arbitration provision. Id. at 756.

Hutchinson does not stand for the proposition that a party waives its right to litigate unless it refuses to participate in arbitration or files a motion to stay. Rather, the decisive inquiry is whether a party voluntarily and knowingly intended to waive its right to litigate arbitration. Id. at 755 ("Waiver is the voluntary and intentional relinquishment of a known right or conduct which implies the voluntary and intentional relinquishment of a known right." (internal quotation marks omitted) ).

Here, although the City participated in arbitration, it consistently and repeatedly raised the issue of arbitrability. See Kaplan, 514 U.S. at 946, 115 S.Ct. 1920 ("[M]erely arguing the arbitrability issue to an arbitrator does not indicate a clear willingness to arbitrate that issue, i.e., a willingness to be effectively bound by the arbitrator's decision on that point."). We therefore agree with the trial court that City did not waive its objection to the Arbitrator's power.

Because the Arbitrator exceeded his authority to decide the Officers' grievances and the City did not waive its objection to arbitrability, we affirm the trial court's determination on waiver but reverse with respect to the court's denial of the City's motion to vacate the arbitration award.

Affirmed in part, reversed in part, and remanded for further proceedings.

      Following an internal affairs investigation, the Officers were exonerated of any wrongdoing.

      FOP is the exclusive bargaining representative of the Officers.

      There are actually two collective bargaining agreements: (1) a 2012-2014 Agreement and (2) a 2014-2015 Agreement. The relevant language in the two agreements is the same.

      Relatedly, Article 4.4 of the Agreement provides as follows: "Those inherent managerial functions, prerogatives, and policy making rights which the City has not expressly modified or restricted by a specific provision of this Agreement are not in any way, directly or indirectly, subject to the Grievance Procedure contained in this Agreement."

      The Fifth District in Hutchinson distinguishes its decision from "two significant cases in Florida in which a participant in arbitration has been determined to have waived its right to litigate in the courts." Id. at 756. Those cases are also distinguishable from the case before us. In LeNeve, 908 So.2d 530, LeNeve waived, in writing, his right to submit arbitrability to the circuit court. In Victor v. Dean Witter Reynolds, Inc., 606 So.2d 681 (Fla. 5th DCA 1992), the Fifth District found that a brokerage firm had waived its right to have the courts decide a statute of limitations issue because of its long, active, knowledgeable, and intentional participation in the arbitration process.