author: Damoorgian, J.

text:
    AVELO MORTGAGE, LLC, Appellant, v. VERO VENTURES, LLC, a Florida Limited Liability Company; Richard Harvey; Jack Mecca ; Eutelyn Satchell; Horner Equipment of Florida, Inc., a Florida Corporation, n/k/a HornerXpress-South Florida, Inc.; Oswald Walker; Rolland Ammons d/b/a Prestige Aluminum; Dana Forman d/b/a Judgment Resolution; William & Marlene Maciag; Marilyn C. Rinehart; Robert P. Summers, Esquire; Capital One Bank; City of Port St. Lucie; Waste Management Inc. of Florida; The United States of America; Port St. Lucie Utilities Department ; and Barbara Wakula, deceased, Appellees.
    No. 4D14-4147
    District Court of Appeal of Florida, Fourth District.
    [June 27, 2018]
    Diana B. Matson and Joshua R. Levine of Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, Fort Lauderdale, for appellant.
    Louis B. Vocelle, Jr. of Vocelle & Berg, LLP, Vero Beach, for appellee Vero Ventures, LLC.
   Damoorgian, J.

Avelo Mortgage, LLC ("Avelo") appeals a summary judgment entered in favor of Vero Ventures, LLC ("Owner") on its quiet title action. For the reasons discussed below, we reverse and remand for entry of summary judgment in favor of Avelo.

Undisputed Material Facts

In 2007, Avelo initiated a mortgage foreclosure action against Barbara Wakula ("Borrower") after she defaulted on a $185,000 loan. The complaint alleged that the loan was secured by a purchase money mortgage and that Avelo was the owner and holder of the subject note and mortgage. In addition to Borrower, the complaint listed Steven and Rose Wallen ("Creditors") as defendants based on a judgment they held against Borrower. In 2010, Avelo's foreclosure action was dismissed for lack of prosecution.

In June 2013, Owner filed an action to quiet title to the subject real property and listed Avelo as a defendant. The complaint alleged that in April 2013, Creditors acquired title to the subject real property by virtue of a Sheriff's deed and thereafter, transferred their interest in the property to Owner via a quit claim deed. The complaint also generally alleged that Owner's interest in the real property was superior to Avelo's interest.

Avelo answered the complaint and denied all of the material allegations, including the allegation that Owner's interest in the subject property was superior to Avelo's interest. Avelo also filed a counterclaim seeking a declaration that its mortgage was a valid, enforceable lien on the subject property and that its interest in the property was superior to Owner's interest. Owner answered the counterclaim and denied all of the material allegations. Owner also raised several affirmative defenses to Avelo's counterclaim, including that enforcement of Avelo's lien was barred by the applicable statute of limitations and repose. Owner's statute of limitations and repose argument was premised on the belief that once Avelo accelerated the underlying note in the dismissed 2007 foreclosure action, the five-year statute of limitations began to run from that date. As Avelo had not re-filed a foreclosure action within those five years, Owner maintained that Avelo was forever barred from enforcing its lien.

The parties eventually each filed motions for summary judgment. In its motion, Avelo argued that pursuant to Singleton v. Greymar Associates , 882 So.2d 1004 (Fla. 2004), the dismissal of the 2007 foreclosure action had the effect of placing the parties back in the same contractual relationship and revoking the declared acceleration. Accordingly, the statute of limitations did not bar a subsequent foreclosure action so long as the subsequent action was predicated upon a separate period of default from the one alleged in the first action. Therefore, Avelo's mortgage remained a valid, enforceable lien on the subject property and, as a matter of law, constituted a cloud on the property for purposes of a quiet title action. Acknowledging the Singleton decision, Owner maintained that the holding in that case should not be invoked to bar its quiet title action because enforcement of Avelo's mortgage was barred by laches, the statute of repose, and by the fact that Avelo failed to raise a foreclosure action as a compulsory counterclaim to the quiet title action.

Following a hearing on the parties' respective motions, the court entered an order granting Owner's motion for summary judgment on its quiet title action and declaring Avelo's mortgage null and void. Additionally, the court denied Avelo's motion for summary judgment on its declaratory relief action. The court concluded that Avelo's mortgage did not constitute a valid, enforceable lien against the property for several reasons. First, the court reasoned that the holding in Singleton should not be invoked to bar Owner's quiet title action because Avelo's prior foreclosure action was dismissed for failure to prosecute. Second, the court concluded that the statute of repose separately barred any future foreclosure action because, by accelerating all sums due and owing under the subject note and mortgage in the 2007 foreclosure action, Avelo changed the final maturity date. Third, the court reasoned that Avelo "unequivocally sat on its hands since 2008" and enforcement of its mortgage was therefore barred by laches. Finally, the court found that Avelo's failure to file a foreclosure action as a "compulsory" counterclaim to the quiet title action necessarily barred any future foreclosure action. This appeal follows.

Analysis

1) Statute of Limitations and Statute of Repose

We begin our analysis by addressing the trial court's finding that enforcement of Avelo's mortgage was barred by the statute of limitations and statute of repose. The issue of whether acceleration of the amounts due under a note and mortgage in a later dismissed foreclosure action triggers application of the five-year statute of limitations under section 95.11(2)(c), Florida Statutes (2014) has been clearly decided by our supreme court in Bartram v. U.S. Bank National Ass'n , 211 So.3d 1009 (Fla. 2016). In that case, the court held that because the effect of an involuntary dismissal of a foreclosure action is revocation of the acceleration, "the statute of limitations does not continue to run on the amount due under the note and mortgage" regardless of the reason why the dismissed foreclosure action was unsuccessful. Id. at 1012, 1020. Pursuant to Bartram , the trial court's ruling on the application of the statute of limitations and repose was incorrect. Owner concedes error.

2) Laches

We next address the trial court's application of the doctrine of laches in reaching its conclusion that Avelo's mortgage did not constitute a valid lien against the property. "Laches is an omission to assert a right for an unreasonable and unexplained length of time, under circumstances prejudicial to the adverse party." Ticktin v. Kearin , 807 So.2d 659, 663 (Fla. 3d DCA 2001). The party asserting the defense must establish legal prejudice which "results when there is a loss or injury to a person who relies on another person's voluntary failure to exercise a legal right." Pyne v. Black , 650 So.2d 1073, 1076 (Fla. 5th DCA 1995). Within the unique context of mortgage foreclosure law, any delay by the mortgagee in enforcing its rights generally acts to the property owner's benefit in permitting him or her to remain in the property and cannot amount to legal prejudice. Florance v. Johnson , 366 So.2d 527, 528 (Fla. 3d DCA 1979) ("Any delay in enforcing the mortgagee's rights acted only to her benefit in permitting her to remain in her home; plainly, there was no showing of a detriment or disadvantage to the defendant occasioned by that delay, which is indispens[a]ble to a finding of laches.").

An exception to this rule applies when the unreasonable delay is coupled with unique circumstances. For example, in Travis Co. v. Mayes , the plaintiff brought a mortgage foreclosure action against the defendant twenty-five years after the mortgage was executed and seventeen years after the date of the mortgage's maturity. 160 Fla. 375, 36 So.2d 264, 265-66 (1948). At the time the foreclosure action was filed, the defendant had been in possession of the property for fifteen years; had paid all taxes and improvement liens on the property; and had made substantial repairs and improvements to the property. Id. at 266. In holding that laches barred the plaintiff's foreclosure action, the court reasoned that "it would be highly inequitable to permit the plaintiff to enforce its claim against defendant." Id. at 266-67. The court emphasized the fact that the defendant "had paid taxes on the property for twenty-six years [and] had restored it from a practically worthless asset to one of value." Id. at 267.

In the present case, we hold that the court erred in concluding that laches barred enforcement of Avelo's mortgage because Owner failed to establish legal prejudice. Unlike the defendant in Travis who had been in possession of the property for fifteen years, had paid all taxes and improvement liens on the property, and had made substantial repairs and improvements to the property, Owner possessed the subject property for no more than two months at the time it filed its quiet title action. Moreover, not only did Owner fail to present any summary judgment evidence showing how or if it improved the property, but the trial court itself did not make findings of prejudice in its final order. Rather, the court based its decision to apply laches solely on Avelo's delay in enforcing its lien. This was clearly erroneous as "[d]elay alone in asserting a right does not constitute laches." Ticktin , 807 So.2d at 663.

3) Compulsory Counterclaim

Lastly, we address the trial court's conclusion that because Avelo failed to file a foreclosure action as a compulsory counterclaim to Owner's quiet title action, Avelo was forever barred from enforcing its mortgage. Without addressing whether a foreclosure action is in fact a compulsory counterclaim to a quiet title action, we hold that the court's ultimate conclusion that Avelo's failure to file such a counterclaim barred any future foreclosure action was incorrect for two reasons.

First, because "[a] new default, based on a different act or date of default not alleged in [a] dismissed [foreclosure] action, creates a new cause of action," Avelo's failure to file a foreclosure action as a counterclaim could not legally serve to bar a future foreclosure action predicated upon a future period of default which has not yet occurred. Star Funding Sols., LLC v. Krondes , 101 So.3d 403, 403 (Fla. 4th DCA 2012). This is because "[a] counterclaim that has not accrued is not mature, so that it is not a compulsory counterclaim within the meaning of rule 1.170(a)." Kellogg v. Fowler, White, Burnett, Hurley, Banick & Strickroot, P.A. , 807 So.2d 669, 672 (Fla. 4th DCA 2001).

Second, even if Avelo's failure to file a foreclosure action as a counterclaim barred it from bringing a future foreclosure action, Avelo's mortgage nonetheless remained a valid lien against the property. See Countrywide Home Loans, Inc. v. Burnette , 177 So.3d 1032, 1034 (Fla. 1st DCA 2015) ("Even if the statute of limitations has run on an action to enforce a promissory note and foreclose on a mortgage, the lien against the property remains valid until five years after the maturity date of the debt secured by the mortgage."); see also Deutsche Bank Tr. Co. v. Ams. v. Beauvais , 188 So.3d 938, 953 (Fla. 3d DCA 2016) (holding that the trial court erred in declaring the mortgage null and void and quieting title to the property as the mortgage lien remained valid until the expiration of the statute of repose); Rodriguez v. Bank of Am., N.A. , 49 F.Supp.3d 1154, 1158-59 (S.D. Fla. 2014) (applying Florida law and holding that because the statute of repose had not expired, the mortgage lien remained a valid, enforceable cloud on mortgagor's title, thus precluding a quiet title action).

In conclusion, the trial court erred in quieting title in favor of Owner and declaring Avelo's mortgage null and void as the mortgage remained a valid, enforceable lien on the subject property. Accordingly, we reverse the summary judgment entered in favor of Owner on its quiet title action and remand for entry of summary judgment in favor of Avelo on its declaratory relief action.

Reversed and remanded.

Kuntz, J., and Fahnestock, Fabienne, Associate Judge, concur.


source: Caselaw Access Project

author: Gerber, C.J.

license: Public Domain

text:
    Johnson H. COBB, Appellant, v. FLORIDA ATLANTIC UNIVERSITY, Appellee.
    No. 4D17-3490
    District Court of Appeal of Florida, Fourth District.
    [July 5, 2018]
    Jeffrey B. Crockett of Coffey Burlington, P.L., Miami, for appellant.
    Daniel A. Jones, Office of the General Counsel, Florida Atlantic University, Boca Raton, for appellee.
   Gerber, C.J.

A college student appeals from the university's final administrative order denying his request for residency determination for tuition purposes. The student primarily argues that the university misapplied section 1009.21, Florida Statutes (2017), which defines the criteria for determining whether a student shall be classified as a resident or nonresident for the purpose of assessing tuition. We agree with the student's argument as to the university's misapplication of section 1009.21 in his case. We reverse and remand for the university to reconsider the student's request by properly applying section 1009.21.

We present this opinion in three parts:

1. the procedural history;
2. section 1009.21's plain language; and
3. our review.

1. Procedural History

The student sought determination as a resident for tuition purposes. To be eligible for residency status, the student sought to prove that he had established permanent legal residency in this state for at least twelve consecutive months immediately before the semester for which he sought resident-based tuition. The student's proof included, among other things: an affidavit of Florida domicile; a Florida voter registration; a Florida driver's license; a Florida vehicle registration; a Florida bank account; a Florida apartment lease; and a letter from his Florida employer, indicating he worked twenty-five hours a week for the past six months.

The university's registrar denied the student's residency determination request. The registrar's denial letter stated, in pertinent part:

The main circumstance considered was employment. Your employment did not satisfy Fla. Stat. 1009.21(3)(c) 1.h.... which requires that you must show proof of permanent employment in Florida for at least 30 hours per week for a 12 month period prior to the term for which in-state tuition is sought. After a review of the documentation you submitted in support of permanent legal residency, the University has denied your request for reclassification as a resident student for tuition purposes.

(emphasis added).

The student appealed the denial to the university's residency appeals committee. The student's appeal argued that the registrar's decision was based on a misstatement of section 1009.21(3)(c) 1.h., Florida Statutes (2017), because proof of permanent employment in Florida, for at least thirty hours per week for a twelve month period prior to the term for which in-state tuition is sought, is not a "requirement," but instead was just one form of documentation available to prove permanent Florida residency.

The university's residency appeals committee upheld the registrar's decision to deny the student's residency determination. The committee's denial letter stated, in pertinent part:

The circumstances considered was the claimant's employment . The documentation you submitted did not satisfy Fla. Stat. 1009.21 which requires the student to present clear and convincing evidence that supports permanent legal residency in the state for at least 12 consecutive months.

(emphasis added).

The student, having exhausted his administrative remedies within the university, filed this appeal. The student argues that the university misapplied section 1009.21 in two respects: (1) by misstating, in the registrar's denial letter, that section 1009.21(3)(c) 1.h. "requires" him to have shown proof of permanent employment in Florida for at least thirty hours per week for a twelve month period prior to the term for which in-state tuition is sought; and (2) by solely focusing, in the residency appeals committee's denial letter, on his employment, when section 1009.21 provides that his employment was just one form of documentation available to prove permanent Florida residency.

Given the student's reliance upon section 1009.21, we provide a detailed recitation of the statute's plain language.

2. Section 1009.21's Plain Language

Section 1009.21 provides, in pertinent part:

(3)(a) An individual shall not be classified as a resident for tuition purposes and, thus, shall not be eligible to receive the in-state tuition rate until he or she has provided such evidence related to legal residence and its duration ... as may be required by law and by officials of the institution of higher education from which he or she seeks the in-state tuition rate.
(b) Except as otherwise provided in this section, evidence of legal residence and its duration shall include clear and convincing documentation that residency in this state was for a minimum of 12 consecutive months prior to a student's initial enrollment in an institution of higher education.
(c) Each institution of higher education shall affirmatively determine that an applicant who has been granted admission to that institution as a Florida resident meets the residency requirements of this section at the time of initial enrollment. The residency determination must be documented by the submission of written or electronic verification that includes two or more of the documents identified in this paragraph. No single piece of evidence shall be conclusive.
1. The documents must include at least one of the following :
a. A Florida voter's registration card.
b. A Florida driver license.
c. A State of Florida identification card.
d. A Florida vehicle registration.
e. Proof of a permanent home in Florida which is occupied as a primary residence by the individual or by the individual's parent if the individual is a dependent child.
f. Proof of a homestead exemption in Florida.
g. Transcripts from a Florida high school for multiple years if the Florida high school diploma or high school equivalency diploma was earned within the last 12 months.
h. Proof of permanent full-time employment in Florida for at least 30 hours per week for a 12-month period.
2. The documents may include one or more of the following:
a. A declaration of domicile in Florida.
b. A Florida professional or occupational license.
c. Florida incorporation.
d. A document evidencing family ties in Florida.
e. Proof of membership in a Florida-based charitable or professional organization.
f. Any other documentation that supports the student's request for resident status, including, but not limited to, utility bills and proof of 12 consecutive months of payments; a lease agreement and proof of 12 consecutive months of payments; or an official state, federal, or court document evidencing legal ties to Florida.
...
(6)(a) ... [A] person who is classified as a nonresident for tuition purposes may become eligible for reclassification as a resident for tuition purposes if that person ... presents clear and convincing documentation that supports permanent legal residency in this state for at least 12 consecutive months rather than temporary residency for the purpose of pursuing an education, such as documentation of full-time permanent employment for the prior 12 months or the purchase of a home in this state and residence therein for the prior 12 months while not enrolled in an institution of higher education.

§ 1009.21(3), (6), Fla. Stat. (2017) (emphasis added).

3. Our Review

Based on our review of section 1009.21's plain language, we agree with the student's argument. The university's interpretation of section 1009.21 was clearly erroneous in two respects. Cf. Hallendy v. Florida Atlantic University , 16 So.3d 1057, 1059 (Fla. 4th DCA 2009) ("Where there is competent substantial evidence in the record which supports an agency's determination of fact and the agency's interpretation of the applicable law is not clearly erroneous , the agency's action must be affirmed.") (emphasis added; alteration, quotation marks, and citations omitted).

First, the registrar's denial letter erroneously stated that section 1009.21(3)(c) 1.h. "requires" the student to have shown proof of permanent employment in Florida for at least thirty hours per week for a twelve month period prior to the term for which in-state tuition is sought. Section 1009.21(3)(c) 1.h. contains no such "requirement." Section 1009.21(3)(c) 1.h. includes "[p]roof of permanent full-time employment in Florida for at least 30 hours per week for a 12-month period" as one of fourteen itemized forms of documentation available to prove permanent residency under section 1009.21(3)(c), when only two such forms of documentation are required. More importantly, section 1009.21(3)(c), before listing the fourteen itemized forms of documentation available to prove permanent residency, plainly states: "No single piece of evidence shall be conclusive." Thus, the university registrar's denial letter was clearly erroneous.

Second, the residency appeals committee's denial letter appears to state that the sole circumstance considered on the student's appeal was his employment. If so, such limited consideration was clearly erroneous, because, as mentioned in the previous paragraph, section 1009.21(3)(c) clearly states that employment is not the sole circumstance to be considered. Moreover, section 1009.21(6)(a), which addresses a reclassification request, by its use of the phrase "such as," clearly states that employment is not the sole circumstance to be considered.

Conclusion

Based on the foregoing, we reverse the university's denial of the student's request for residency determination for tuition purposes, and remand for the university to reconsider the student's request by properly applying section 1009.21. See Lindsey v. Bd. of Regents for and on behalf of Univ. of Fla. , 629 So.2d 941, 943 (Fla. 1st DCA 1993) (remanding university's denial of student's request for residency reconsideration where university's denial was based on "requirement" which was nowhere in the rule governing residency status).

The student requests us to go one step further and conclude, based on his evidentiary submission to the university, that he is entitled to the permanent residency determination. That request is premature, as our only proper action at this time is to remand for the university to reconsider the student's request by properly applying section 1009.21. We make no comment on whether the university should grant or deny the student's permanent residency determination request upon a proper application of section 1009.21.

Reversed and remanded for further proceedings consistent with this opinion.

Gross and Ciklin, JJ., concur.


author: Taylor, J.

text:
    D.M.B., a child, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D17-394 4D17-395 4D17-397 4D17-398 4D17-399 4D17-400 4D17-433
    District Court of Appeal of Florida, Fourth District.
    [July 11, 2018]
    Carey Haughwout, Public Defender, and Virginia Murphy, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Joseph D. Coronato, Jr., Assistant Attorney General, West Palm Beach, for appellee.
   Taylor, J.

D.M.B. appeals his adjudication of delinquency and commitment to a non-secure residential program based on a violation of probation. Appellant argues that the trial court erroneously found that he violated probation in seven consolidated cases by committing a new law violation: loitering or prowling. We agree and reverse.

In April 2016, appellant was charged by petition with loitering or prowling under section 856.021, Florida Statutes (2016). In the affidavit of violation of probation, the state alleged that appellant: (1) committed a new law violation; (2) failed to complete his community service; (3) failed to complete substance abuse counseling; (4) violated his curfew; (5) failed a drug test; and (6) failed to attend school full-time without unexcused absences, skips, tardies, discipline referrals, or suspensions. During the final probation violation hearing, which was combined with the non-jury trial on the loitering or prowling charge, the state abandoned all other allegations of probation violation and proceeded only on the loitering or prowling charge.

The state's evidence established the following facts. On April 25, 2016, shortly before noon, West Palm Beach police responded to calls of a burglary in progress and several juveniles fleeing the area at Lakes of Laguna, a residential housing development. Multiple officers responded to the scene. A witness pointed one officer toward a juvenile who was running north. Another officer observed a group of juveniles running away from the police and pursued two of them. A canine officer and his police dog tracked six of the juveniles, including appellant, to a wooded area along a canal. One of the juveniles was attempting to cross the canal. However, when the canine officer announced that he had a police dog, who was barking at the time, the juveniles stopped and raised their hands. Officers then escorted the juveniles from the wooded area and took them into custody.

After appellant was arrested, he was interviewed by a detective, who read appellant his Miranda rights. Appellant told the detective he did not know anything about a burglary because he had left Palm Beach Lakes High School to go to McDonald's with his friends. He admitted that he ran when the police arrived at Lakes of Laguna, but explained that he ran because he was on probation and believed he was trespassing on the property. Although police recovered some property from the burglary, appellant was not charged with that offense. Instead, the state charged him with loitering or prowling.

At the close of the state's case-in-chief, appellant moved for a judgment of dismissal, arguing that the state had failed to prove a prima facie case of loitering or prowling because his alleged behavior at the canal was innocuous. The court denied the motion. Appellant did not present a case but renewed his motion for judgment of dismissal. The court dismissed the substantive offense, finding that the description of appellant's conduct at the time of the stop fell "[woefully] short" of facts needed to support the offense of loitering or prowling. However, the court found that, based on appellant's conduct at the time of the stop and his admission to trespassing, the evidence supported finding a violation of probation by the lower preponderance of the evidence standard in violation of probation cases. The court also found that appellant's statements did not allay the fears of the officer at the time because appellant admitted to another crime. The court adjudicated appellant delinquent in the violation of probation cases, based on the loitering or prowling offense.

On appeal, appellant argues that the evidence was insufficient to establish that he committed the new crime of loitering or prowling, even using the lower preponderance standard. He contends that his belief that he had been trespassing was not sufficient to constitute an "admission" to the crime of trespass. The state argues that the evidence supported the finding of a violation by establishing that appellant: (1) fled from the area of the burglarized home as the police arrived; (2) admitted to truancy and trespassing; (3) admitted to accompanying juveniles involved in the burglary; (4) failed to give the detective a good reason for his presence at the burglarized home; (5) hid in a dense wooded area inaccessible to the public; and (6) admitted he knew that he was in violation of his probation by being near the scene of the residential burglary.

We review a trial court's decision on a motion for judgment of dismissal de novo. A.W. v. State , 82 So.3d 1136, 1138 (Fla. 4th DCA 2012). A violation of probation based on a new law violation requires proof by a preponderance of the evidence that the defendant committed the charged offense. Jones v. State , 117 So.3d 818, 821 (Fla. 4th DCA 2013). We review de novo whether competent substantial evidence supports such a finding. Id.

To prove the crime of loitering or prowling, the state must establish: "(1) the defendant loitered or prowled 'in a place, at a time, or in a manner not usual for law-abiding individuals,' and (2) the loitering was under 'circumstances that warrant a justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity.' " E.F. v. State , 110 So.3d 101, 104 (Fla. 4th DCA 2013) (quoting § 856.021, Fla. Stat. (2011) ). Both elements must be committed in the officer's presence prior to the defendant's arrest. E.F. , 110 So.3d at 104.

The first element requires the state to prove that "the defendant engaged in incipient criminal behavior which law-abiding people do not usually engage in due to the time, place, or manner of the conduct involved." E.C. v. State , 724 So.2d 1243, 1244 (Fla. 4th DCA 1999) (citation omitted). In other words, the defendant must be engaged in "aberrant and suspicious criminal conduct which comes close to, but falls short of, actual commission or attempted commission of a substantive crime." B.J. v. State , 951 So.2d 100, 103 (Fla. 4th DCA 2007) (quoting D.A. v. State, 471 So.2d 147, 151 (Fla. 3d DCA 1985) ). "A mere 'vaguely suspicious presence is insufficient' to satisfy this element." E.F. , 110 So.3d at 104 (quoting P.R. v. State , 97 So.3d 980, 983 (Fla. 4th DCA 2012) ). Instead, "[t]his element has been read to require a threat of immediate, future criminal activity." V.E. v. State , 539 So.2d 1170, 1171 (Fla. 3d DCA 1989). In this respect, "the statute is forward-looking, rather than backward-looking in nature," as its goal "is to punish a certain type of incipient criminal behavior before it ripens into the commission or attempted commission of a substantive criminal act." D.A. , 471 So.2d at 151.

The second element of the loitering or prowling statute is established where the arresting officer articulates "specific facts which, when 'taken together with rational inferences from those facts, reasonably warrant a finding that a breach of the peace is imminent or the public safety is threatened.' " G.G. v. State , 903 So.2d 1031, 1033 (Fla. 4th DCA 2005) (citations omitted). To this end, a court may consider "whether the person takes flight, refuses to identify himself, or attempts to conceal himself or an object." Id. However, "flight alone is insufficient to satisfy the elements of loitering and prowling." P.R. , 97 So.3d at 983.

In J.S. v. State , 147 So.3d 608 (Fla. 4th DCA 2014), we considered a similar set of facts. There, a law enforcement officer responded to reports of a burglary in progress in a residential neighborhood at 4:00 in the morning. Id. at 609. The officer found the defendant walking in the area and drove up next to him. After stopping and exiting his marked police vehicle, the officer identified himself as a police officer and told the defendant to "stop," because the defendant matched the description of the burglary suspect-a black male wearing a red shirt. Id. The defendant made eye contact with the officer and then took off running. Id. Officers found the defendant hiding behind an air conditioning unit in the bushes behind a building, and one officer observed him remove his shirt in an effort to conceal himself. Id.

The defendant was charged with loitering and prowling. J.S. He unsuccessfully moved for a judgment of dismissal at trial, arguing that it was not unusual for a person to walk down the street in a red shirt in a residential area at that time of day and that the alleged crime was not completed when the officers found him. Id. at 609-10. On appeal, we reversed and held that the state's evidence failed to indicate "incipient behavior" that pointed toward "the threat of an immediate, future crime." Id. at 610 (emphasis in original). Instead, the evidence demonstrated only "a mere vaguely suspicious presence." Id.

The facts in this case, as in J.S. , also require reversal. The evidence adduced below was insufficient to establish-even under the preponderance of the evidence standard-that appellant's actions rose to the level of incipient behavior pointing toward the threat of an immediate future crime. When the police located appellant, he was not engaged in conduct that came close to, but fell short of, the actual or attempted commission of the burglary. In fact, the burglary had already taken place and the juveniles were fleeing when police arrived at the scene. There was no threat of an immediate, future crime. At most, appellant's presence and conduct were "vaguely suspicious." E.F. , 110 So.3d at 104. When officers found him, appellant was not involved in behavior that officers wanted to prevent from ripening into a substantive offense. Instead, he was detained on suspicion of having already committed a criminal offense. We therefore reverse appellant's delinquency adjudication based on the loitering or prowling charge and the order committing appellant to a non-secure residential facility.

Reversed.

Warner and Levine, JJ., concur.


text:
    Justine G. GORDON, Appellant, v. GATLIN COMMONS PROPERTY OWNERS ASSOCIATION, INC. and Northside Nursery, Inc., Appellees.
    No. 4D17-1999
    District Court of Appeal of Florida, Fourth District.
    [July 18, 2018]
    Steven M. Katzman and Craig A. Rubinstein of Katzman, Wasserman, Bennardini & Rubinstein, P.A., Boca Raton, and Lauri J. Goldstein of A Law Firm of Lauri J. Goldstein & Associates, PLLC, Stuart, for appellant.
    Hala Sandridge of Buchanan Ingersoll & Rooney PC, Tampa, for Appellee Northside Nursery, Inc.
   Taylor, J.

For the second time, the plaintiff, Justine Gordon, appeals an order dismissing her personal injury complaint as a sanction for her attorneys' failure to comply with court orders. In the prior appeal, we reversed the trial court's order of dismissal and remanded the case for the trial court to make express findings under Kozel v. Ostendorf , 629 So.2d 817 (Fla. 1993). See Gordon v. Gatlin Commons Prop. Owners Ass'n, Inc. , 199 So.3d 1120 (Fla. 4th DCA 2016). On remand, the trial court held an evidentiary hearing and entered an order of dismissal that considered the Kozel factors. We again reverse, concluding that dismissal was too harsh a sanction.

In June 2012, the plaintiff filed her personal injury complaint against various defendants. After fifteen months of discovery, she amended the complaint in September 2013 to add Northside Nursery as a defendant. The plaintiff alleged that Northside owned, leased, operated, possessed, controlled, and/or maintained the premises where she had slipped and fallen into a hole.

On December 9, 2014, the plaintiff filed a notice for jury trial, indicating that the case was at issue and ready for trial. On January 29, 2015, the trial court entered a pre-trial procedure order and set calendar call for non-jury trial on the March 24, 2015 - May 15, 2015 trial docket. On February 6, 2015, the trial court entered an amended order, which, among other things:

• instructed the Parties: "if Plaintiff's counsel fails to appear for calendar call, the complaint may be dismissed by the court";
• required the plaintiff's expert disclosures no less than forty-five days before calendar call;
• required all potential fact witnesses to be disclosed no less than thirty days before calendar call;
• required all discovery to be completed five days before calendar call, absent an agreement;
• warned that failure to comply with the pre-trial order must be reported by filing a "Suggestion of Noncompliance with Pre-Trial Order";
• warned that failure to appear at calendar call and failure to comply with the order may result in sanctions such as striking of pleadings, default, or case dismissal; and
• required that any motion to continue comply with Florida Rule of Civil Procedure 1.460 and include the requesting party's signature.

On February 23, 2015, Northside filed an ex parte motion to compel the plaintiff to answer interrogatories that were served on November 24, 2014. Northside also filed a suggestion of non-compliance with the pre-trial order, a motion to strike, or in the alternative, a motion to continue. Northside alleged that the plaintiff had not disclosed any potential expert witnesses, as required, by February 9, 2015. It noted that the pre-trial order required discovery to be concluded by March 16, 2015, that the plaintiff's failure to disclose any experts rendered Northside unable to complete discovery as required by the pre-trial order, and that it was thus prejudiced by the plaintiff's failure to comply with the terms of the order.

On March 11, 2015, the trial court granted Northside's motion to compel and gave the plaintiff ten days to respond to the interrogatories that were propounded in November 2014. The plaintiff's counsel failed to respond, and on March 23, 2015, Northside filed an amended suggestion of non-compliance with the pre-trial order. Northside set a hearing for April 6, 2015. On March 26, 2015, an attorney for the plaintiff appeared at mediation, but she did not seem to know anything about the plaintiff's file. On April 1, 2015, a different attorney from the plaintiff's counsel's firm filed a notice of non-objection to the amended suggestion of non-compliance and acknowledged the April 6 hearing.

On April 6, 2015, when the trial court conducted the hearing on Northside's amended suggestion of non-compliance, the plaintiff's counsel did not appear. Northside's counsel advised the court that the plaintiff's counsel was experiencing some difficulties because an attorney from her law firm, who was handling the plaintiff's case at the time of the pre-trial order, had left the firm. Northside's counsel complained, however, that the plaintiff's failure to file a witness or exhibit list prevented him from completing his preparation for trial. Northside moved to strike the plaintiff's pleadings and enter a judgment in its favor. Northside alternatively requested that the trial court strike the case from the trial docket.

The trial court granted the motion to strike the pleadings, dismissed the case, and reserved ruling on sanctions. The court summarily denied the plaintiff's motion for rehearing but entered a revised dismissal order, stating: "This Court, based on argument and a review of the record, concludes that Plaintiff's multiple violations of the [Amended Pre-]Trial Order were willful or contumacious, and moreover, Plaintiff agreed with [the Defendant's] motion to strike."

The plaintiff appealed the dismissal, and as mentioned above, we reversed and remanded to the trial court to make the requisite findings under Kozel . See Gordon , 199 So.3d at 1124.

On remand, the trial court conducted an evidentiary hearing. At the hearing, the plaintiff's attorney testified that two other attorneys from her law firm were initially handling the plaintiff's case, and that "literally in the middle of the night," these attorneys, accompanied by two secretaries, stole 170 files-including the plaintiff's-from the firm. In addition, the attorneys stole the firm's laptop, deleted dates and files on the computer, discarded papers in the garbage, and left her office in shambles.

The plaintiff's case was then reassigned to another attorney in the law firm, who, at the time of the Kozel hearing, no longer worked there and had wage litigation pending against the firm.

Regarding the Kozel factors, the plaintiff's counsel testified that the plaintiff was not personally involved in any of the failures to file documents or to appear for hearings. She noted that she attended a mediation on the plaintiff's behalf in this case but was unaware of a calendar call scheduled three days before the mediation. She believed that the calendar call date was once on the computer system but that it had been deleted. She explained that a witness, exhibit, and/or expert witness list was prepared in this case but that it, too, was deleted. While working with her computer technician and a detective who was investigating the thefts from her office, she discovered that numerous other filings were deleted from the office computer system. She maintained that she did not fail to comply with any orders deliberately or willfully and explained that she and her clients were the victims of "[t]he atrocities that were done to [her] office."

On cross-examination, the plaintiff's counsel testified that about eight attorneys from her firm, including herself, had been involved in the plaintiff's case, but she did not know whether the firm had ever filed an email address designation. In response to the trial court's questioning, the plaintiff's counsel said she had never searched her name in the clerk's electronic system to determine the status of any of her cases.

After the hearing, the trial court entered an order weighing the Kozel factors and again found that dismissal was the proper sanction. The court concluded that dismissal was warranted because of the "long pattern of repeated neglect which amounts to a willful and contumacious disobedience to the Court's orders by the multiple revolving attorneys who represented Plaintiff at various stages of the pretrial proceedings."

Before specifically addressing each of the Kozel factors in its written order, the trial court first criticized the law firm's non-compliance with Rule of Judicial Administration 2.516, which requires all lawyers appearing in a case to designate a current email address, and the firm's failure to file notices of the firm's several name changes.

As to the six Kozel factors, the court made findings that:

(1) the plaintiff's counsel showed a clear history of continuing, deliberate, willful and contumacious disobedience of the court's pretrial orders, evidenced by, inter alia , the violation of at least five court orders and a failure to appear for two hearings;
(2) the "prior sanctions" factor likely did not apply because there was no previous sanction order in the instant case;
(3) the client was not personally involved in any of the acts of disobedience;
(4) Northside was prejudiced by, inter alia , having to waste time and resources to attend a calendar call and a hearing where the plaintiff's counsel failed to appear, and further by having to prepare for trial without knowledge of the plaintiff's witnesses or exhibits;
(5) none of the non-complying attorneys involved were able to present a reasonable justification for their noncompliance, where the law firm representing the plaintiff failed to review the court file and keep its name and email designation current; and
(6) the delay caused by the plaintiff's counsel created significant problems of judicial administration by affecting the issuance of juror summons, sheriff's deputy courtroom assignments, clerk's office personnel assignments, and courtroom time reservations.

Further, the trial court stated that it considered less severe sanctions, such as fines or a contempt finding, but determined that those options would not have cured the plaintiff's counsel's failure to comply with the court's orders or the prejudice to the defendants.

The plaintiff now argues on appeal that the trial court failed to properly analyze and weigh the Kozel factors, and that the totality of the circumstances militates against a dismissal with prejudice.

A trial court's decision to impose sanctions is reviewed for abuse of discretion. Kirkland's Stores, Inc. v. Felicetty , 931 So.2d 1013, 1015 (Fla. 4th DCA 2006) (citing Boca Burger, Inc. v. Forum , 912 So.2d 561, 573 (Fla. 2005) ). When deciding whether to dismiss a case with prejudice as a sanction, a court first must consider the following factors:

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

Kozel , 629 So.2d at 818. After considering these factors, if there is a viable alternative sanction that is less severe than a dismissal with prejudice, the trial court should employ that alternative. Id.

In Ham v. Dunmire , 891 So.2d 492 (Fla. 2004), the Florida Supreme Court reiterated that "the interests of justice in this state will not tolerate the imposition of sanctions that punish litigants too harshly for the failures of counsel." Id. at 497. While noting that a lack of client involvement in discovery violations will not preclude dismissal of the client's case where the circumstances surrounding an attorney's neglect demonstrate "a persistent refusal to comply with court orders" or otherwise warrant dismissal, the court nonetheless emphasized that the sanction of dismissal "must be a reasonable response to the discovery infractions committed." Id. at 498.

In this case, we find that dismissal of the plaintiff's suit was unwarranted and that a lesser sanction should have been imposed.

The record shows that the plaintiff filed her complaint in June 2012, named Northside as a defendant in September 2013, and diligently prosecuted the case for almost two years before her counsel ultimately violated the court order setting pre-trial procedures in February 2015.

This case bears some similarity to Clay v. City of Margate, 546 So.2d 434 (Fla. 4th DCA 1989). There, we reversed the dismissal of an action where the plaintiff's discovery delay was not a deliberate and contumacious disregard of the court's order and the plaintiff had litigated the case for over a year and a half before the untimely discovery response.

Here, the trial court expressly found that there were no facts showing that the plaintiff was personally involved in any of the discovery violations and that the plaintiff's counsel had not been previously sanctioned in this case. The court nonetheless concluded that dismissal was appropriate, based in part on the plaintiff's counsel's "repetition of willful, deliberate and contumacious acts of disregard and disobedience to this Court's orders." The record shows, however, that there were mitigating circumstances surrounding the plaintiff's counsel's non-compliance with portions of the pre-trial order. These circumstances were based on the apparent theft and deletion of files by former attorneys of the law firm, which caused considerable disruption and disarray of the law firm's office and operations. Moreover, the record does not show a protracted history of discovery abuses, clear prejudice to Northside, evidence of significant problems of judicial administration, or other circumstances to warrant the ultimate sanction of dismissal.

Based on the circumstances, a less draconian sanction should have been imposed. Any prejudice to Northside could have been cured through an award of fees, a continuance of trial, and an enlargement of time for the plaintiff to file her witness and exhibit lists. Accordingly, we reverse the trial court's order dismissing this case and remand for further proceedings.

Reversed and Remanded.

Warner and Gross, JJ., concur.

      Steven M. Katzman and Craig A. Rubinstein of Katzman, Wasserman, Bennardini & Rubinstein. P.A. Boca Raton, represent Justine G. Gordon in this appeal; they were not trial counsel in the proceedings below.

      Given that the action was dismissed five weeks prior to the trial week for which this action was set as the ninth trial, we disagree that a delay of the trial would have created any of the problems of judicial administration listed in the order of dismissal.


text:
    Courtney PEYNADO, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-3367
    District Court of Appeal of Florida, Fourth District.
    [August 1, 2018]
    Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jeanine Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   Damoorgian, J.

Courtney Peynado appeals his withhold of adjudication and sentence for one count of possession of cocaine following a plea. We reverse because the evidence supporting the charge against Appellant was the result of an illegal search and seizure.

Appellant was arrested and charged with one count of possession of cocaine after police found crack cocaine in a food container held by Appellant. Appellant moved to suppress the evidence on the grounds that it was obtained as the result of an illegal search and seizure. The matter proceeded to a suppression hearing where the following was established via the testimony of the arresting officer.

At around 7:30 a.m., the officer and his partner were patrolling a high crime area. The officer, who was wearing a vest with the word "Sheriff" written on it, was driving an unmarked SUV with the windows rolled down. As the officer proceeded to turn at an intersection, he observed two males standing at the corner of the intersection. One of the males, who the officer identified as Appellant, was holding an open white food container in one hand and a fork in the other.

As the officer turned, Appellant looked up with a "deer in headlights" expression on his face. Appellant then dropped his fork, followed by a large, yellow, chunky item, into the food container and pushed the item down with the fork. Based on his training and twenty-five years of experience as a law enforcement officer, the officer testified that he immediately recognized the item dropped into the food container as crack cocaine. The officer stopped his vehicle, instructed his partner to detain Appellant, and took the container, which contained grits, out of Appellant's hands. Using the fork, the officer lifted the item out of the grits. Testing confirmed that the item was in fact crack cocaine.

On cross-examination, defense counsel attempted to ascertain how far the officer was when he observed Appellant drop the item into the container. In so doing, the record reflects that defense counsel moved about the courtroom several times while asking the officer if the distance separating them was the same as the distance that separated the officer and Appellant. Aside from generically testifying that he was "close enough to see the crack drop out of [Appellant's] hand," the officer steadfastly refused to give an approximation of his distance from Appellant. In fact, the officer told defense counsel "[y]ou can go right out the door, I still won't say."

After viewing the cocaine, which the court described as a white, semi-waxy, one inch square which at first glance looked like a pat of butter, the court made the following finding with regard to the officer's credibility:

First, there's no way I believe the officer when he says he was able to immediately identify the object that was dropped into the container as being crack cocaine. I don't think-I think it's incomprehensible from almost any distance based on what this court observed to be able to say that no matter with what training and experience that the object was in fact crack cocaine.
...
I can tell you with complete surety, even with perfect vision, from the size of the item that I saw in evidence there's no way that someone from the back of this courtroom would be able to tell me that they could recognize what I saw as a white square dropping into a takeout plate was crack cocaine. If it was maybe a foot away or two feet away or even five feet away, with the officer's training and experience considering where he was, etc., maybe [it] could be something I could buy.

Nonetheless, citing to case law involving the application of the plain view doctrine, the court denied the motion to suppress based on the following legal conclusions:

[T]he standard isn't whether it was cocaine or not, it's whether or not the incriminating nature of the evidence was immediately apparent and that police are not required to know what exactly the item is, it's just a question whether or not the circumstances in seeing the item lead the officers to believe reasonably that it is incriminating, that there's incriminating nature to the evidence.
In this case we have a situation where officer pulls up where the individual recognizes the person in the car to be an officer is surprised, nervous. The description of the officer like a deer in headlights. In response to that, the person who happen[s] to be in the high crime narcotics area drops first the fork that he's using to eat items immediately followed by what the officer claims he ... sees crack cocaine which I do not believe, but does drop an item that is consistent potentially with crack cocaine into the plate that he's holding and proceeds to push the item down into the plate all in response to seeing a police officer.
I think taken those circumstances in its context, I think the officer does have a reasonable belief that what [Appellant] was dropping did have an incriminating nature. Although I do not believe that the officer could identify particularly what it was but since he's not required to under the circumstances, would lead a reasonable officer or reasonable person to believe that what was being dropped into the [container] was incriminating in nature and therefore justified an investigatory stop.

After the court denied his motion to suppress, Appellant entered a plea of no contest, reserving his right to appeal the suppression ruling. Based on his plea, the court withheld adjudication and sentenced Appellant to twenty-four months of drug offender probation. This appeal follows.

The Fourth Amendment of the United States Constitution guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend IV. "[A]n officer may, consistent with the Fourth Amendment, conduct a brief, investigatory stop when the officer has a reasonable, articulable suspicion that criminal activity is afoot." Illinois v. Wardlow , 528 U.S. 119, 123, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000). The officer, however, "must be able to articulate more than an 'inchoate and unparticularized suspicion or "hunch" ' of criminal activity." Id. at 123-24, 120 S.Ct. 673 (quoting Terry v. Ohio , 392 U.S. 1, 27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ).

In finding that the officer had the requisite reasonable suspicion to detain Appellant and search and seize the food container, the trial court in the instant case relied on case law involving the application of the plain view doctrine. Under that doctrine, items in plain view may be seized without a warrant if the incriminating character of the items are immediately apparent to the officer. Keller v. State , 946 So.2d 1233, 1234 (Fla. 4th DCA 2007). Stated differently, upon seeing items in plain view, the officer "must have probable cause to believe a crime is being, is about to be, or has been committed." Id. Although the officer is not required to know that the items are contraband for certain, there must be "facts available to the officer [which] would lead a reasonable man of caution to believe that certain items may be contraband." State v. Walker , 729 So.2d 463, 464 (Fla. 2d DCA 1999). "These facts may include not only the appearance of the suspected contraband, but also all of the surrounding circumstances." State v. Fischer , 987 So.2d 708, 712 (Fla. 5th DCA 2008). "Based on an officer's training and experience, the incriminating nature of a substance in open view may be determined by the officer's visual observation and identification of the substance." Id.

In the present case, the trial court made an express finding that it did not believe the officer immediately identified the item as cocaine based on his visual observation of the item. To the contrary, the court found that it was "incomprehensible from almost any distance based on what this court observed to be able to say that no matter with what training and experience that the object was in fact crack cocaine." Rather, the court found that the incriminating nature of the item was determined by the surrounding circumstances, namely Appellant's nervous reaction to seeing the officer and his subsequent attempt to conceal the item. Appellant's movements, however, were insufficient to give the officer reasonable suspicion, let alone probable cause, to believe that the item was contraband or that Appellant was involved in criminal activity. See Welch v. State , 689 So.2d 1240, 1241 (Fla. 2d DCA 1997) (holding that although the officers could have properly engaged in a consensual police-citizen encounter upon spotting the defendant stuff a baggie into his pants while in a high crime area, the officers "acted prematurely in actually seizing him"); M.J.S. v. State , 620 So.2d 1080, 1081 (Fla. 2d DCA 1993) (holding that the defendant's startled reaction to seeing the officer and subsequent attempt to conceal something in his mouth "did not give the police officer a reasonable suspicion or probable cause to believe that the [defendant] was involved in criminal activity").

In sum, we hold that the trial court erred in denying Appellant's motion to suppress. Because the suppression ruling was established as a dispositive issue, Appellant's withhold of adjudication and sentence is reversed. See Osorio v. State , 244 So.3d 1115, 1121 (Fla. 4th DCA 2018).

Reversed.

Levine and Kuntz, JJ., concur.


author: Gross, J.

text:
    STATE ATTORNEY'S OFFICE OF the SEVENTEENTH JUDICIAL CIRCUIT and School Board of Broward County, Appellants, v. CABLE NEWS NETWORK, INC., Miami Herald Media Company, Sun-Sentinel Company, LLC, ABC, Inc., The Associated Press, The Bradenton Herald, The First Amendment Foundation, Florida Press Association, Gannett Company, Inc., Los Angeles Times Communications LLC, The New York Times Company, Orlando Sentinel Communications Company, LLC, Broward County Sheriff's Office, and Scott Israel, in his official capacity as Broward County Sheriff, Appellees.
    Nos. 4D18-1335 4D18-1336
    District Court of Appeal of Florida, Fourth District.
    [August 8, 2018]
    Michael J. Satz, State Attorney, and Joel Silvershein, Assistant State Attorney, Fort Lauderdale, for appellant, State Attorney's Office of the Seventeenth Judicial Circuit.
    Eugene K. Pettis and Debra Potter Klauber of Haliczer, Pettis & Schwamm, P.A., Fort Lauderdale, for appellant, School Board of Broward County.
    Dana J. McElroy, James J. McGuire, and Jon M. Philipson of Thomas & LoCicero, PL, Fort Lauderdale, for appellees, Cable News Network, Inc.; Miami Herald Media Company; and Sun-Sentinel Company, LLC, ABC, Inc.; The Associated Press; The Bradenton Herald; the First Amendment Foundation; the Florida Press Association; Gannett Co., Inc.; Los Angeles Times Communications LLC; The New York Times Company; and Orlando Sentinel Communications Company, LLC.
    ON APPELLEES' MOTION FOR ATTORNEY'S FEES
   Gross, J.

Various media appellants (the "Media") have filed a motion for appellate attorney's fees under the Public Records Act, Chapter 119, Florida Statutes (2018). In a separate opinion, we affirmed the circuit court order requiring production of certain video footage taken by security cameras at Marjory Stoneman Douglas High School. See State Attorney's Office v. Cable News Network, Inc., No. 4D18-1335, 251 So.3d 205, 2018 WL 3569397, (Fla. 4th DCA July 25, 2018). The motion seeks to recover fees from appellants, the State Attorney's Office of the Seventeenth Judicial Circuit and the School Board of Broward County.

We deny the motion for attorney's fees because neither defendant "unlawfully refused to permit a public record to be inspected or copied" within the meaning of section 119.12(1)(a), Florida Statutes (2018).

Section 119.12 provides:

(1) If a civil action is filed against an agency to enforce the provisions of this chapter, the court shall assess and award the reasonable costs of enforcement, including reasonable attorney fees, against the responsible agency if the court determines that:
(a) The agency unlawfully refused to permit a public record to be inspected or copied; and
(b) The complainant provided written notice identifying the public record request to the agency's custodian of public records at least 5 business days before filing the civil action....

(Emphasis added).

This section "is designed to encourage public agencies to voluntarily comply with the requirements of chapter 119, thereby ensuring that the state's general policy is followed. If public agencies are required to pay attorney's fees and costs to parties who are wrongfully denied access to the records of such agencies, then the agencies are less likely to deny proper requests for documents." New York Times Co. v. PHH Mental Health Servs., Inc. , 616 So.2d 27, 29 (Fla. 1993). "[A] prevailing party is entitled to statutory attorney's fees under the Public Records Act when the trial court finds that the public agency violated a provision of the Public Records Act in failing to permit a public record to be inspected or copied." Bd. of Trustees, Jacksonville Police & Fire Pension Fund v. Lee , 189 So.3d 120, 128 (Fla. 2016).

The School Board's objection to the video footage was not "unlawful" because it was based on the "security plan" exemption from disclosure contained at section 119.071(3)(a), Fla. Stat. (2018). As we wrote in State Attorney's Office :

Because the footage from the surveillance cameras "relates directly" to the security system at Douglas, including both its capabilities and its vulnerabilities, the footage is confidential and exempt from disclosure to the public under sections 119.071(3)(a) and 281.301(1), unless an exception to the exemption applies.

The School Board's refusal to permit disclosure was required by statute; it could not therefore be "unlawful" within the meaning of section 119.12(1)(a). Only a "court of competent jurisdiction" may determine whether the "good cause" statutory exception applied to require disclosure. § 119.071(3)(a)3, Fla. Stat. (2018). The School Board's conduct did not become "unlawful" because it pursued this unsettled area of the law on appeal.

The Media is not entitled to an award of fees against the State Attorney because the State Attorney was never the custodian of the public records here at issue. The State Attorney intervened in the action to give voice to the criminal investigation information exemption to disclosure. The State Attorney did not violate a provision of the Public Records Act in failing to permit a public record to be inspected or copied because the State Attorney was never the agency responsible for maintaining the public record or complying with Public Records requests.

The motion for attorney's fees is denied.

Conner and Klingensmith, JJ., concur.


text:
    Will TWIGG, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-1694
    District Court of Appeal of Florida, Fourth District.
    [August 24, 2018]
    David F. Pleasanton of David F. Pleasanton, P.A., West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Matthew Steven Ocksrider, Assistant Attorney General, West Palm Beach, for appellee.
    ON MOTION FOR REHEARING
   Damoorgian, J.

We grant the State's motion for rehearing in part to correct a scrivener's error, withdraw our opinion dated August 1, 2018, and substitute the following.

Appellant, Will Twigg, appeals his conviction and sentence for one count of battery on an emergency medical care provider and one count of battery following an altercation between Appellant and staff members at a Veteran's Administration hospital ("VA"). On appeal, Appellant argues that: 1) the State failed to prove that he committed the offense of battery on an emergency medical care provider; and 2) Appellant's trial counsel was ineffective on the face of the record for failing to request a self-defense jury instruction and failing to move for a judgment of acquittal on the battery on an emergency medical care provider charge. We agree with Appellant's arguments pertaining to the battery on an emergency medical care provider count and reverse that conviction. We affirm otherwise.

Background

Appellant was involuntarily brought to the emergency department of the VA pursuant to Florida's Baker Act after his employer reported that Appellant was exhibiting erratic behavior. Appellant was subsequently admitted to the VA's inpatient psychiatric unit where, after learning that he was not being released, Appellant became combative and spit on a nurse and a VA law enforcement officer. Based on the foregoing, the State charged Appellant with one count of battery on an emergency medical care provider for spitting on the nurse, one count of battery for spitting on the VA officer, and one count of resisting an officer without violence. Appellant pled not guilty and filed a notice of intent to rely upon insanity as a defense.

The matter proceeded to a jury trial where the State presented evidence that the nurse victim was a Licensed Practical Nurse ("LPN") who, on the day in question, was working in the VA's inpatient psychiatric unit. The State's evidence also established that the psychiatric unit was a secure lockdown unit which was separate and distinct from the VA's other departments, including the emergency department. At the conclusion of the State's case, Appellant's counsel declined to move for a judgment of acquittal ("JOA") on any of the charges. Instead, counsel focused on an insanity defense, presenting evidence from a psychiatrist who opined that Appellant was not able to determine whether what he did was right or wrong when he spit on the nurse and VA officer.

Considering the evidence, the jury rejected Appellant's insanity affirmative defense and found him guilty of battery on an emergency medical care provider, guilty of battery, and not-guilty of resisting an officer without violence. The court adjudicated Appellant per the jury's verdict and sentenced Appellant to time served followed by eighteen months of probation.

Analysis

a) Sufficiency of the Evidence Proving Battery on an Emergency Medical Care Provider

Appellant contends that the State's evidence regarding the nurse victim was insufficient to support a conviction for battery on an emergency medical care provider. Appellant is correct.

Section 784.03 of the Florida Statutes provides that the offense of battery is a first degree misdemeanor and "occurs when a person: 1. [a]ctually and intentionally touches or strikes another person against the will of the other; or 2. [i]ntentionally causes bodily harm to another person." § 784.03(1)(a) -(b), Fla. Stat. (2015). When a battery is committed on certain persons, including "an emergency medical care provider ... while the ... emergency medical care provider ... is engaged in the lawful performance of his or her duties," section 784.07 of the Florida Statutes reclassifies the offense "of battery, from a misdemeanor of the first degree to a felony of the third degree." § 784.07(2), (2)(b), Fla. Stat. (2015).

Based on the foregoing, the elements of the offense of battery on an emergency medical care provider are: (1) the defendant intentionally touched or struck the victim or intentionally caused bodily harm to the victim; (2) the victim was an emergency medical care provider; (3) the defendant knew that the victim was an emergency medical care provider; and (4) the emergency medical care provider was engaged in the lawful performance of his or her duties when the battery was committed. Fla. Std. Jury Instr. (Crim.) 8.11; State v. Granner , 661 So.2d 89, 90 (Fla. 5th DCA 1995). Therefore, in order to prove that Appellant committed the offense of battery on an emergency medical care provider with respect to the alleged nurse victim, the State was required to prove that the nurse was indeed "an emergency medical care provider."

The term "emergency medical care provider" is defined as:

1) [A]n ambulance driver, emergency medical technician, paramedic, registered nurse, physician as defined in s. 401.23, medical director as defined in s. 401.23, or any person authorized by an emergency medical service licensed under chapter 401 who is engaged in the performance of his or her duties.
2) The term "emergency medical care provider" also includes physicians, employees, agents, or volunteers of hospitals as defined in chapter 395, who are employed, under contract, or otherwise authorized by a hospital to perform duties directly associated with the care and treatment rendered by the hospital's emergency department or the security thereof.

§ 784.07(1)(a), Fla. Stat. (2015) (spacing and numbering added).

In Spurgeon v. State , 114 So.3d 1042, 1045 (Fla. 5th DCA 2013), the Fifth District clarified that because section 784.07 is penal in nature, the definition of "emergency medical care provider" must be strictly construed in conjunction with its plain language. Accordingly, in order to meet the first classification of persons outlined in the definition of "emergency medical care provider," the State needed to establish that the nurse victim was a "registered nurse ... or any person authorized by an emergency medical service license under chapter 401 who is engaged in the performance of his or her duties." § 784.07(1)(a), Fla. Stat. (2015).

The definition section of chapter 401 defines a "registered nurse" as "a practitioner who is licensed to practice professional nursing pursuant to part I of chapter 464." § 401.23(20), Fla. Stat. (2015) (emphasis added). Chapter 464 governs the regulation of nursing in Florida. Part I of Chapter 464 provides that an LPN is any "person licensed in this state or holding an active multistate license under s. 464.0095 to practice practical nursing." § 464.003(16), Fla. Stat. (2015) (emphasis added). It further delineates that "the practice of practical nursing" is distinct from "the practice of professional nursing" and that only a "registered nurse" is licensed "to practice professional nursing." § 464.003(19) -(20), (22), Fla. Stat. (2015) (emphasis added). As an LPN is only licensed to practice practical, not professional, nursing, an LPN does not meet the definition of a "registered nurse" under either chapter 401 or 464. Therefore, as an LPN, the nurse victim did not qualify as a "registered nurse" as used in the definition of "emergency medical care provider."

Likewise, the evidence also did not establish that the nurse victim was "any person authorized by an emergency medical service license under chapter 401." Chapter 401 provides for the licensure of emergency medical transportation services such as ambulances and air ambulances. §§ 401.25, .251, Fla. Stat. (2015). The nurse victim was working for a hospital, not a medical transportation service. Accordingly, based on both her license classification and who she worked for, the State did not prove that the nurse victim fell under the first class of persons defined as an "emergency medical care provider."

To fall under the second classification of persons outlined in the definition of "emergency medical care provider," the State was required to prove that the nurse victim was an "employee[ ], agent[ ], or volunteer[ ] of [a] hospital[ ] as defined in chapter 395, who [was] employed, under contract, or otherwise authorized by [the] hospital to perform duties directly associated with the care and treatment rendered by the hospital's emergency department or the security thereof." § 784.07(1)(a), Fla. Stat. (2015) (emphasis added). The evidence adduced at trial established that when she was spit upon, the nurse victim was performing LPN services in the VA's inpatient psychiatric unit. The evidence also established that the VA's inpatient psychiatric unit was separate and distinct from its emergency department. Accordingly, the evidence submitted at trial did not establish that the nurse victim's duties were "directly associated with the care and treatment rendered by the hospital's emergency department." Id. Thus, the State also did not prove that the nurse victim qualified as an "emergency medical care provider" under either classification.

Despite the State's failure to prove that the nurse victim qualified as an "emergency medical care provider," Appellant failed to move for a JOA based on the insufficiency of the evidence and, therefore, failed to preserve the issue for anything other than a fundamental error review. F.B. v. State , 852 So.2d 226, 229 (Fla. 2003).

[I]n order to be of such fundamental nature as to justify a reversal in the absence of timely objection the error must reach down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.

Id. (quoting Brown v. State , 124 So.2d 481, 484 (Fla. 1960) ). Based on this narrow application, the Florida Supreme Court has clearly delineated that unpreserved challenges to the sufficiency of the evidence may only be reviewed for fundamental error in two circumstances: "(1) the mandatory review by [the supreme court] of the evidence by which a capital defendant was convicted and sentenced to death; and (2) when there is insufficient evidence that a defendant committed any crime." Monroe v. State , 191 So.3d 395, 401 (Fla. 2016). Accordingly, the insufficiency of the evidence to prove an element of a crime does not warrant fundamental error review. Bagnara v. State , 189 So.3d 167, 171 (Fla. 4th DCA 2016) (state's failure to prove value element of grand theft was not fundamental error). Therefore, Appellant's insufficiency of the evidence argument is not cognizable on appeal. The issue is, however, cognizable as an ineffective assistance of counsel claim.

b) Ineffective Assistance of Counsel on the Face of the Record

"[I]neffective assistance of counsel claims should rarely be raised on direct appeal because they are generally fact-specific." Michel v. State , 989 So.2d 679, 681 (Fla. 4th DCA 2008). As a result, "[a]ppellate courts do not ordinarily address ineffective assistance of counsel concerns until a defendant seeks postconviction relief because such courts are limited to reviewing the record directly before them." Monroe , 191 So.3d at 403. "On rare occasions, the appellate courts make an exception to this rule when the ineffectiveness is obvious on the face of the appellate record, the prejudice caused by the conduct is indisputable, and a tactical explanation for the conduct is inconceivable." Bagnara , 189 So.3d at 171 (quoting Corzo v. State , 806 So.2d 642, 645 (Fla. 2d DCA 2002) ).

i) Failure to Move for a JOA on the Battery on an Emergency Medical Care Provider Count
[F]ailure to move for a judgment of acquittal when the State has not proved an essential element of its case, when it is clear that the State could not reopen its case to prove that essential element, amounts to ineffective assistance of counsel that may sometimes be adequately assessed from the record on direct appeal.

Corzo , 806 So.2d at 645.

As discussed above, the State did not prove, and from our review of the record could not prove, that the nurse victim qualified as an "emergency medical care provider," an essential element of the offense of battery on an emergency care provider. Therefore, had counsel made a proper motion, Appellant would have been entitled to a JOA on the battery on an emergency medical care provider count and a reduction of the charge to the lesser included offense of battery. The distinction between the two offenses is significant as battery is a misdemeanor while battery on an emergency care provider is a felony. Thus, it is plain from the face of the record that counsel's failure to seek a JOA on the battery on an emergency care provider charge was prejudicial to Appellant and constituted ineffective assistance of counsel. See Bagnara , 189 So.3d at 172 (counsel's failure to properly move for JOA when state did not prove value element of grand theft constituted ineffective assistance of counsel on the face of the record); Gordon v. State , 126 So.3d 292, 295-96 (Fla. 3d DCA 2011) (counsel's failure to properly move for JOA when state did not prove all of the elements of charged crime constituted ineffective assistance of counsel on the face of the record).

Under these circumstances, "[i]t would be a waste of judicial resources to postpone addressing this issue until [Appellant] seeks post-conviction relief for ineffective assistance of counsel below." Lesovsky v. State , 198 So.3d 988, 992 (Fla. 4th DCA 2016). Accordingly, we reverse Appellant's conviction for battery on an emergency medical care provider.

ii) Failure to Request a Self-Defense Instruction

Appellant also argues that his counsel was ineffective for failing to request a self-defense jury instruction which, according to Appellant, would have been based on a theory that Appellant was protecting himself from being illegally detained under Florida's Baker Act. Appellant is correct that self-defense is a viable defense to the crimes of battery and battery on an emergency medical care provider. See Spurgeon , 114 So.3d at 1047. Further, even though Appellant also asserted insanity as a defense, Appellant was entitled to assert self-defense as an alternate theory of defense regardless of whether the defenses may have been inconsistent. See Martin v. State , 110 So.3d 936, 939 (Fla. 1st DCA 2013) (defendant was entitled to have jury instructed on self-defense in aggravated assault on a law enforcement officer case even though defendant also asserted that he was insane). Thus, had Appellant's counsel requested a self-defense instruction, it certainly would have been error for the court to deny the request. Spurgeon , 114 So.3d at 1047.

However, this does not mean that counsel was necessarily ineffective on the face of the record for failing to make such a request. "[S]trategic decisions do not constitute ineffective assistance of counsel if alternative courses have been considered and rejected and counsel's decision was reasonable under the norms of professional conduct." Occhicone v. State , 768 So.2d 1037, 1048 (Fla. 2000).

Here, Appellant's counsel primarily argued that Appellant was not guilty by way of insanity because Appellant did not know what he was doing or that what he was doing was wrong due to his mental condition. Arguing self-defense as proffered would have required Appellant's counsel to assert that, in the alternative, Appellant knew what he was doing but reasonably believed he needed to act to protect himself from being unlawfully detained. It is entirely possible and reasonable that counsel made a strategic decision not to pursue an alternate defense of self-defense in order not to undermine the credibility of the proffered insanity defense. Compare Cole v. State , 221 So.3d 534, 543-44 (Fla. 2017) (counsel's decision to abandon duress defense and instead argue that the defendant did not knowingly participate in the crime was strategic and reasonable), with Kruse v. State , 222 So.3d 13, 17 (Fla. 4th DCA 2017) (counsel was ineffective on the face of the record for failing to request a self-defense instruction when the evidence supported the instruction and there could be no strategic basis for not asking for the instruction as self-defense was the defendant's only proffered defense). Under the facts of this case, this issue of whether counsel was deficient for failing to request a self-defense instruction requires explanation from counsel and is, therefore, better suited for postconviction proceedings.

Conclusion

In conclusion, we hold that the State did not and could not prove the nurse victim was an "emergency medical care provider" and, therefore, did not prove that Appellant committed the offense of battery on an emergency medical care provider. Although Appellant's trial counsel did not preserve this error for appeal by moving for a JOA and the error is not fundamental, counsel's failure to move for a JOA constitutes ineffective assistance of counsel on the face of the record. Counsel was not, however, ineffective on the face of the record for failing to request a self-defense instruction when counsel also proffered a potentially inconsistent insanity defense. Based on the foregoing, we reverse Appellant's conviction and sentence for battery on an emergency medical care provider and, on remand, direct the trial court to enter a judgment of guilt for the lesser-included offense of battery and proceed with a resentencing on that count. We otherwise affirm without prejudice for Appellant to file a motion for postconviction relief on the self-defense issue.

Affirmed in part, reversed in part and remanded.

Levine, J., concurs.

Kuntz, J., concurs specially with opinion.

As Judge Winokur explains in his concurring opinion in Latson v. State , 193 So.3d 1070, 1071-75 (Fla. 1st DCA 2016), direct appellate review of a criminal judgment should be limited to preserved arguments and fundamental error. Section 924.051(2), Florida Statutes (2017), states that "[t]he right to direct appeal ... may only be implemented in strict accordance with the terms and conditions of this section," and section 924.051(3) limits review on direct appeal to "prejudicial error" that "is properly preserved or, if not properly preserved, would constitute fundamental error." So "[i]t seems clear that fundamental error is the 'sole exception' to the general rule that a party must preserve errors to raise them on appeal." Latson , 193 So.3d at 1072 (Winokur, J., concurring). Despite this statutory limit on our authority, a Florida Supreme Court decision compels reversal. Thus, I fully concur in the Court's opinion.

In this case, the State failed to prove each element of the crime for which the Defendant was convicted. At the close of the State's case, the circuit court asked defense counsel whether he intended to assert any motions. In response, defense counsel represented that the Defendant was not seeking a judgment of acquittal.

Similarly, in Monroe v. State , 191 So.3d 395, 398 (Fla. 2016), "[a]fter the State rested, the trial court asked defense counsel if they intended to move for judgment of acquittal. Defense counsel declined." The defendant argued on appeal that the state failed to introduce evidence to establish an element of the crime. Id. at 399-400. Conceding the issue was not preserved, the defendant argued it was fundamental error to convict him when the State failed to prove each element of the crime. Id.

Our supreme court reaffirmed its prior decisions, holding that unpreserved challenges to the sufficiency of the evidence cannot be reviewed on direct appeal when there is sufficient evidence to establish the defendant committed a crime. Id. at 401-02. Such unpreserved claims are only cognizable as fundamental error on direct appeal when the State fails to prove the defendant committed any crime at all. Id.

But the lack of preservation or fundamental error did not result in an affirmance. Id. The court continued and held "that the failure of Monroe's trial counsel to preserve the sufficiency of the evidence issue for appellate review constitutes ineffective assistance of counsel that is apparent from the face of this record." Id. at 402. Based upon the finding of ineffective assistance of counsel on the face of the record, the court reversed. Id. at 404.

The question presented in this case is nearly identical to that answered in Monroe . In both cases, the State failed to prove each element of the crime, but the defendant did not preserve the issue by moving for a judgment of acquittal. Further, in both, the State presented sufficient evidence to establish a lesser included offense thereby precluding fundamental error.

Based on Monroe , I agree that we must reverse the Defendant's conviction for ineffective assistance of counsel on the face of the record. The circumstances are too similar. But absent the controlling opinion from the supreme court, I would question our authority to do so. The legislature limited direct appeal of a criminal judgment to preserved issues and fundamental error. Notwithstanding the statutory limits, claims of ineffective assistance of counsel on direct appeal are now commonly asserted. As Judge Winokur concluded, "the practice of permitting claims of ineffective assistance of counsel on direct appeal stemmed from a misreading of case law, and is directly contrary to controlling statutory law." Latson , 193 So.3d at 1074. Allowing a defendant to assert claims of ineffective assistance of counsel on direct appeal, absent fundamental error, allows the defendant to evade the strict requirements for fundamental error and "deprives trial counsel of the opportunity to defend themselves against allegations of unprofessional conduct." Id. In the future, we should be careful to limit our review to that authorized by statute or, as here, mandated by supreme court precedent.

      §§ 394.451-.47892, Fla. Stat. (2015).


author: Forst, J.

text:
    Melissa Minsk DONOHO, as candidate for the Broward County Judge Circuit Group 38, Appellant, v. Jason ALLEN-ROSNER, whose legal name is Jason Allen Rosner, as candidate for Broward County Judge Circuit Group 38, and Dr. Brenda C. Snipes, in her official Capacity as Supervisor of Elections for Broward County, Florida, Appellees.
    No. 4D18-1814
    District Court of Appeal of Florida, Fourth District.
    [August 24, 2018]
    Melissa Minsk Donoho, Fort Lauderdale, pro se.
    Juan-Carlos "J.C." Planas of KYMP LLP, Miami, for appellee Jason Allen-Rosner.
    Burnadette Norris-Weeks of Burnadette Norris-Weeks, PA, Fort Lauderdale, for appellee Dr. Brenda C. Snipes.
   Forst, J.

Appellant Melissa Donoho, a candidate for circuit court judge in the Seventeenth Judicial Circuit, appeals an order denying her emergency complaint for temporary injunctive relief. She sought to prevent an opponent, Appellee Jason Allen Rosner, from appearing on the primary ballot as "Jason Allen-Rosner." She claims Appellee began hyphenating his middle and last name to take advantage of alphabetical placement on the ballot. The trial court concluded that Appellee is not precluded from using the hyphenated form of his name on the ballot. We agree with the trial court that the elements for a temporary injunction were not met. Thus, we affirm.

Background

The parties are two of the candidates for seventeenth circuit (Broward County) judge in Group 38. The dispute at issue concerns Appellee's choice of name to be placed on the August 28, 2018 ballot. In several filings with the Florida Department of State ("the Department") in January 2018, Appellee listed his name as "Jason Allen Rosner." In subsequent filings with the Department, his name was noted as "Jason Allen-Rosner."

Appellant filed a complaint for temporary injunctive relief in May 2018, requesting that Appellee be enjoined from appearing on the August ballot as "Jason Allen-Rosner." Appellant alleged that Appellee is known professionally and personally as "Jason Rosner" or "Jason A. Rosner." For example, Appellee's name is not hyphenated on his marriage license or voter registration. In addition, at the time he filed with the Department, his name was not hyphenated on the Florida Bar's website. Appellee was identified on three previous ballots as a candidate for judicial office as "Jason A. Rosner" or "Jason Allen Rosner." Appellant's complaint alleges that she "will suffer irreparable harm in the absence of injunctive relief and has no other adequate remedy at law." If Appellee was listed as "Jason A. Rosner" on the ballot, Appellant would have the first slot on the four-candidate listing, with Appellee listed fourth.

The trial court entered a detailed order finding that the elements for a temporary injunction-particularly a substantial likelihood of success and irreparable harm-were not shown.

Analysis

"The standard of review of trial court orders on requests for temporary injunctions is a hybrid. To the extent the trial court's order is based on factual findings, we will not reverse unless the trial court abused its discretion; however, any legal conclusions are subject to de novo review." Fla. High Sch. Athletic Ass'n v. Rosenberg ex rel. Rosenberg , 117 So.3d 825, 826 (Fla. 4th DCA 2013) (quoting Foreclosure FreeSearch, Inc. v. Sullivan , 12 So.3d 771, 774 (Fla. 4th DCA 2009) ).

To obtain a temporary injunction, the petitioner "must establish that (1) irreparable harm will result if the temporary injunction is not entered; (2) an adequate remedy at law is unavailable; (3) there is a substantial likelihood of success on the merits; and (4) entry of the temporary injunction will serve the public interest." Univ. Med. Clinics, Inc. v. Quality Health Plans, Inc. , 51 So.3d 1191, 1195 (Fla. 4th DCA 2011) (citing Foreclosure FreeSearch, Inc., 12 So.3d at 775 ).

A. Appellant failed to establish irreparable harm

As indicated in her complaint and elaborated at the hearing, Appellant does not seek to have Appellee disqualified from the election, but instead requests relief in the form of ballot placement. Without injunctive relief, the ballot lists Appellee first and Appellant second, followed by two additional candidates. The relief requested is a ballot listing Appellant first and Appellee last.

"Irreparable injury will never be found where the injury complained of is 'doubtful, eventual or contingent.' " Jacksonville Elec. Auth. v. Beemik Builders & Constructors, Inc. , 487 So.2d 372, 373 (Fla. 1st DCA 1986) (quoting First Nat'l Bank in St. Petersburg v. Ferris, 156 So.2d 421, 424 (Fla. 2d DCA 1963) ). Appellant's argument is premised on the speculative belief that the first name listed on the ballot receives an advantage. The trial court found that any harm to Appellant is speculative. We agree, as we cannot say that "irreparable harm will result if the temporary injunction is not entered."

B. Appellant failed to establish no adequate remedy at law

Appellant's brief fails to address this prong of the four-prong test. Below, Appellant argued that no adequate remedy at law exists because there is no reasonable manner to undo a judicial election premised on a fraudulent and illegal ballot presented to voters.

In any event, as the trial court found below, this "element" is not "dispositive" as Appellant has failed to meet the other prongs of the test.

C. Appellant failed to establish a substantial likelihood of success on the merits

Appellant frames the issue on appeal as "May a candidate for judicial office appear on the ballot under a fictitious surname created solely for the purposes of confusing voters and altering his position on the ballot?" The answer to this question may be "no"; however, the trial court properly found that the addition of a hyphen did not create an invalid surname under the applicable State election laws and, most crucially, that neither factual nor legal support exists for the argument that Appellee used the name "Jason Allen-Rosner" rather than "Jason Allen Rosner" in an attempt to deceive or confuse voters.

We agree with the trial court that "the issue of whether the candidate oath allows for hyphenation" presents a case of first impression. However, several district court opinions guide us as to what is and what is not acceptable with respect to how a candidate is identified on an election ballot.

In Levey v. Dijols , 990 So.2d 688 (Fla. 4th DCA 2008), this Court dealt with the issue of a judicial candidate who had used her maiden name on the ballot. We discussed the definition of "name" in the context of the statute:

Section 105.031(4)(b) instructs the candidate to "please print name as you wish it to appear on the ballot." The term "name" is not defined within the statute or in any other Florida statute pertaining to elections. Significantly, the oath does not require candidates to print any particular name, not the name as it appears on their driver's license, voter's registration, nor Florida Bar license.
Black's Law Dictionary defines a "name" as: "A word or phrase identifying or designating a person or thing and distinguishing that person or thing from others." Black's Law Dictionary 1048 (8th ed. 2004). Merriam-Webster's Online Dictionary defines a "name" similarly: "a word or phrase that constitutes the distinctive designation of a person or thing."
In the context of this statute, the term "name" connotes any legal form of name the person is entitled to use and have printed on the ballot.

Levey , 990 So.2d at 692-93.

In Levey , the candidate's legal name was "Mardi Levey Cohen," and she chose to appear on the ballot under her maiden name of "Mardi Anne Levey." We found that this did not run afoul of the statute, which does not require a candidate to use a specific name, and noted that the trial court found no "evil purpose" to the choice of name and "no fraud or misconduct." Id. at 693 ; see Jordan v. Robinson , 39 So.3d 416, 418 (Fla. 4th DCA 2010) (reversing an injunction that prevented a judicial candidate from using his birth name on the ballot; agreeing with the trial court that the candidate's desire to use his birth name appeared to be aimed at appealing to an ethnic segment of the electorate in a "thinly veiled attempt to deceive and confuse the voters of Broward County," but that the candidate lacked a fraudulent intent to deceive voters).

Here, "Jason Allen-Rosner" is a form of Appellee's name. The Levey and Jordan opinions reflect that a candidate is free to choose how his or her name will appear on the ballot, absent an "evil purpose to [the] choice of name" or an "attempt to confuse the voters into thinking that he [or she is] someone else." See Levey , 990 So.2d at 693 ; Jordan , 39 So.3d at 419.

In both Levey and Jordan , we looked to an earlier decision from the Third District, Planas v. Planas , 937 So.2d 745 (Fla. 3d DCA 2006). There, the court addressed a situation in which candidate Juan E. Planas designated the name "J.P. Planas" to be listed on the ballot as a candidate for a state representative position, challenging the incumbent J.C. Planas. The court held that,

[B]y designating a name ... which had not been adopted by him and under which he had not transacted private and official business, the appellant did not act in the good faith and honest purpose required of all candidates ... [a]llowing him to succeed through a stratagem clearly intended to deceive and confuse voters with the incumbent long and widely known as "J.C." Planas, simply cannot be permitted.

Planas , 937 So.2d at 746 (alterations, citations and quotations omitted).

In the instant case, the trial court found that Appellee "has used his hyphenated name in his public and private life for over a year." The trial court noted that the use was "selective" and that the "decision to employ a hyphenated name could be seen as a way to give [Appellee] a competitive advantage in the election." Ultimately, however, the trial court concluded that Appellee's use of the hyphenated name did not make his name "unrecognizable" or "create the type of confusion as seen in Planas ." We agree and determine that Appellant has failed to establish a likelihood of success on the merits, let alone a substantial likelihood.

D. Appellant failed to establish entry of the temporary injunction will serve the public interest

As detailed in Levey , a candidate for elective office has a great deal of latitude in choosing how to be listed on the ballot-the candidate need not use his/her "legal name" or the name that the candidate generally uses for identification. Here, Jason Allen Rosner merely placed a hyphen between his middle and last name. There is no evidence or argument that he did so in an effort to have voters believe that he was "Jason Allen" rather than "Jason Rosner."

The fact that Appellee chose to be listed as "Allen-Rosner" rather than "Rosner" and the fact that Appellant has taken legal action to enjoin Appellee's ballot placement appears to contradict Appellant's argument that "[a] judicial election ballot is not a scramble to create a name to be listed first like a Yellow Pages listing - 'aa aardvark locksmith.' " Clearly, both parties to this action believe that the first name listed on the ballot receives a boost in votes.

As Appellee abided by the rules in designating the name for placement on the ballot and did not employ "a stratagem clearly intended to deceive and confuse voters," we cannot conclude that entry of an injunction will serve the public interest. To the extent that our election laws provide candidates great latitude in how they will be listed on the ballot, and to the extent that an electoral benefit is conferred on the candidate listed first, the remedy lies not with the courts.

Conclusion

Appellant has failed to establish the elements for a temporary injunction, and the trial court's legal analysis is in accord with the pertinent statute and case law. Accordingly, the trial court's denial of Appellant's complaint for temporary injunctive relief is affirmed.

Affirmed.

Taylor and Kuntz, JJ., concur