Florida Fish and Wildlife Conservation Comm. v. William Daws, Jr. and Ouida Gershon ( 2018 )

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
No. 1D16-4839
_____________________________
FLORIDA FISH AND WILDLIFE
CONSERVATION COMMISSION,
Appellant,
v.
WILLIAM DAWS, JR., OUIDA
GERSHON, BILL I. HINES, REGINA
HINES, HERSHAL O. HOLT,
KAREN A. HOLT, ALAN E.
JOINER, MONICA L. JOINER,
MARY B. KING, SARA KING,
BETTY TOLBERT, RICKY W.
TOLBERT, and JERRY
VARNADORE,
Appellees.
_____________________________
On appeal from the Circuit Court for Leon County.
Karen Gievers, Judge.
April 10, 2018
ROWE, J.
The Florida Fish and Wildlife Conservation Commission
(FWC) appeals an order granting a temporary injunction requiring
the FWC to stop deer hunters and their dogs from trespassing onto
Appellees’ private property. The FWC also appeals the denial of
its motion for summary judgment. We reverse the order in its
entirety, dissolve the injunction, and remand for entry of final
summary judgment in favor of the FWC.
I. Background
The Blackwater Wildlife Management Area (Blackwater
WMA) is located in the Blackwater State Forest and is composed
of more than 200,000 acres of public land in Okaloosa and Santa
Rosa counties. Interspersed within the Blackwater WMA are a
number of private parcels of land, or inholdings, that abut or are
completely surrounded by public lands. 1 Over the years, the State
acquired more and more land within the Blackwater State Forest,
resulting in an increasing number of inholdings – including
properties owned or leased by Appellees. See § 375.041, Fla. Stat.
The FWC regulates hunting on public lands in Florida,
including the Blackwater WMA. The FWC determines the types
of hunting that will be permitted, authorizes specific areas for
hunting, schedules hunting seasons for different types of game,
and issues hunting licenses and permits. The hunting at issue in
this case, deer dog hunting, has been authorized in the Blackwater
WMA since at least the 1950’s. During the deer dog hunting
season, hunters use dogs trained to flush deer out of thickets in the
forest or dogs trained to follow deer trails through the forest.
While in pursuit of deer, the dogs and hunters occasionally leave
the public lands where the FWC has authorized hunting, and
trespass onto private property.
On multiple occasions, deer hunters and their dogs trespassed
onto Appellees’ private property; Appellees repeatedly complained
to the FWC about these trespasses. Appellees also reported a
number of criminal acts allegedly committed by the hunters
1 The patchwork-like composition of the Blackwater WMA is
the result of Florida’s land acquisition program whereby the State
purchases private property for conservation and recreational
purposes. Florida Fish & Wildlife Conservation Commission,
http://myfwc.com/media/4204289/BLACKWATER.pdf (last visited
Mar. 5, 2018).
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including trespass, threats to destroy Appellees’ property, threats
to Appellees’ personal safety, several arson fires, and graffiti
painted on Appellees’ property.
In response to Appellees’ complaints, the FWC took several
actions to curtail the trespasses onto Appellees’ property. The
FWC limited the length of the deer dog hunting season to forty-
four days per year, restricted the geographic area in which deer
dog hunting was authorized within the Blackwater WMA, and
installed fencing to separate the public lands from Appellees’
private property. The FWC also adopted a responsible hunter rule,
which authorized game wardens to respond to calls from private
property owners when trespassing deer dog hunters or their dogs
enter private property. And most recently, in 2016, the FWC
required as a condition of issuing licenses and permits for deer dog
hunting, that hunters equip their dogs with corrective collars that
allow the hunters to control the movements of their dogs by
shocking remotely any dog that trespasses onto private property.
Despite these efforts by the FWC, trespasses continued to occur.
Appellees argue that the FWC is responsible for the trespasses, as
it licenses and permits deer dog hunting in the Blackwater WMA
and regulates hunting by rule, and they assert that the FWC must
prevent further trespasses by hunters and their dogs onto
Appellees’ private property.
II. Procedural History
In 2016, Appellees filed a two-count complaint seeking to
prevent the FWC from issuing deer dog hunting licenses and
permits in the Blackwater WMA. They alleged that the FWC’s
decision to allow deer dog hunting on state-owned land directly led
to the trespasses on their privately-owned land by hunters and
their dogs. Appellees contended that these trespasses were so
serious that they rose to the level of an inverse condemnation
because Appellees were deprived of their right to exclude people
from their private property (“takings claim”). Appellees further
contended that the trespasses constituted a nuisance because the
trespasses deprived Appellees of their right to the quiet enjoyment
of their property. To support this contention, Appellees
complained that the trespassing dogs were disruptive and
potentially dangerous to livestock; it was unsafe for Appellees to
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go into their yards during deer dog season; fences did not stop the
trespasses; and the trespasses prevented Appellees from hunting
on their own property (“nuisance claims”). Appellees also sought
an injunction requiring the FWC to abate the nuisance of the
trespasses by hunters and their dogs onto their private property.
The FWC moved for summary judgment on the takings claims
and nuisance claims. The FWC argued that because Appellees
failed to plead the required elements of a takings claim, no
constitutional claims had been stated against the FWC and its
sovereign immunity had not been waived. The FWC argued that
the doctrines of separation of powers and sovereign immunity
barred the nuisance claims because the FWC owed no duty to
Appellees to prevent trespasses on their property and because the
FWC’s decision to authorize deer dog hunting in the Blackwater
WMA was a discretionary decision, not subject to challenge in the
courts. Finally, with regard to Appellees’ request for an injunction,
the FWC contended that the injunction was overbroad and
impossible to comply with.
The trial court conducted an evidentiary hearing on Appellees’
request for an injunction and the FWC’s motion for summary
judgment. The trial court denied the summary judgment motion,
rejecting the FWC’s sovereign immunity arguments as a matter of
law. With regard to Appellees’ request for an injunction, Appellees
conceded that the court could not order the FWC to stop issuing
deer dog hunting licenses and permits or to redraw the map of the
areas where deer dog hunting was authorized. However, Appellees
argued that the court could enter an injunction ordering the FWC
to stop further trespasses onto Appellees’ property by the hunters
and their dogs and that the FWC could take whatever steps it
deemed necessary to achieve that goal. The court entered the
injunction, ordering the FWC “to abate the nuisance of the deer
hunting dogs from trespassing onto the property of the plaintiffs,
and of the deer dogs and their hunters from interfering with the
plaintiffs’ right to the quiet enjoyment of their private property.”
The FWC appealed, and the trial court’s order was
automatically stayed, preventing the injunction from going into
effect. See Fla. R. App. P. 9.310(b)(2). Appellees moved to vacate
the automatic stay of the injunction in an effort to prevent
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trespasses by hunters and their dogs onto Appellees’ property
during the 2017-2018 hunting season. During the hearing on the
motion to vacate the automatic stay, Appellees testified to
trespasses on their property during the 2016 hunting season –
testimony identical in character to that offered during the hearing
on the original injunction. The trial court entered an order
vacating the automatic stay, and while acknowledging that “it
would be overreaching for the Court to direct the FWC not to
physically release the licenses and permits for the upcoming
hunting season,” the court nonetheless concluded that the “FWC
is on notice its actions in issuing licenses and permits constitute a
nuisance and contribute to the interference with the plaintiffs’
right to the quiet enjoyment of their private property, and there is
no other way to protect those constitutional rights at this juncture
than to vacate the stay.” This Court reinstated the automatic stay
by order issued October 6, 2017.
III. Analysis
We agree with the FWC that the order on appeal should be
reversed for three reasons. First, the FWC was entitled to
summary judgment on Appellees’ takings claims on sovereign
immunity grounds because Appellees did not plead the required
elements to allege valid constitutional claims. Second, the FWC
was entitled to summary judgment on the nuisance claims on
sovereign immunity grounds because the FWC owed no duty to
Appellees and because the authorization of deer dog hunting in the
Blackwater WMA is a discretionary function of the FWC. Third,
the trial court erred in entering the injunction because the
injunction violated the separation of powers and was overly broad.
A. Sovereign Immunity
Sovereign immunity “protects the state from burdensome
interference from the performance of its governmental functions
and preserves its control over state funds, property and
instrumentalities.” Davis v. State, Dep't of Corr., 460 So. 2d 452,
461 (Fla. 1st DCA 1984) (citation omitted). “In Florida, sovereign
immunity is the rule rather than the exception.” Pan-Am Tobacco
Corp. v. Dep’t of Corr., 471 So. 2d 4, 5 (Fla. 1984). There are two
general exceptions to this doctrine. First, sovereign immunity will
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not bar a claim against the State based on violations of the state
or federal constitution. Dep’t of Revenue v. Kuhnlein, 646 So. 2d
717, 721 (Fla. 1994) (“Sovereign immunity does not exempt the
State from a challenge based on violation of the federal or state
constitutions, because any other rule self-evidently would make
constitutional law subservient to the State's will.”). Second, the
State is not immune from suit where it has waived its immunity
pursuant to law. Art. X, § 3, Fla. Const. (allowing “[p]rovision[s]
[to] be made by general law for bringing suit against the state as
to all liabilities now existing or hereafter originating”).
Pursuant to its enactment of section 768.28, Florida Statutes,
the Legislature has explicitly waived the State’s immunity from
suit for liability in tort for damages. But this statutory waiver is
strictly limited to circumstances where the State owes the plaintiff
an underlying common law or statutory duty of care and where the
challenged government actions are not discretionary and inherent
in the act of governing. Jordan v. Nienhuis, 203 So. 3d 974, 976
(Fla. 5th DCA 2016). With this framework in mind, we consider
whether the doctrine of sovereign immunity precludes Appellees’
constitutional takings claims and their tort-based nuisance claims.
1. Constitutional Claims – Takings
Appellees claim that their property was unlawfully taken by
the FWC in violation of article X, section 6 of the Florida
Constitution when the FWC issued deer dog hunting licenses and
failed to prevent trespassing hunters and dogs from entering
Appellees’ property. The FWC argues that sovereign immunity
bars Appellees’ takings claims because the allegations in the
complaint were legally insufficient.
When the trial court rejected the FWC’s sovereign immunity
arguments and denied summary judgment as a matter of law, it
never addressed the legal sufficiency of Appellees’ takings claims.
Instead, the court summarily rejected the FWC’s sovereign
immunity arguments, concluding that the FWC “is not immune
from constitutionally based takings claims.” The trial court
reached this conclusion in reliance on Crowley Museum & Nature
Center, Inc. v. Southwest Florida Water Management District, 993
So. 2d 605 (Fla. 2d DCA 2008). The Second District in that case
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restated the unremarkable proposition that the doctrine of
sovereign immunity does not bar a constitutional claim against the
government – a point the government in that case conceded on
appeal. Id. at 608. Instead, the government argued that the
plaintiff’s complaint did not set forth a facially sufficient inverse
condemnation claim. Id. But the Second District declined to
address the government’s argument because the facial sufficiency
of the inverse condemnation claim was not raised in the trial court.
Id. Thus, the Second District in Crowley did not reach the
question posed to the trial court in this case: whether sovereign
immunity bars a suit asserting an inverse condemnation claim
against the State when the plaintiff fails to set forth a legally
sufficient constitutional claim.
The dissent argues that this Court may not consider the legal
sufficiency of Appellees’ takings claims because the FWC framed
the issue on appeal as a challenge to the court’s sovereign
immunity ruling, without reference to the legal sufficiency of the
takings claims. We disagree with the dissent for two reasons.
First, implicit in the trial court’s sovereign immunity ruling is the
court’s determination that the constitutional claims were legally
sufficient. See Cutler v. City of Jacksonville Beach, 489 So. 2d 126,
128 (Fla. 1st DCA 1986) (observing that a claim must be legally
sufficient to circumvent the application of the sovereign immunity
doctrine). Only if Appellees pleaded the required elements of their
takings claims could the trial court have ruled as a matter of law
that sovereign immunity did not bar the claims against the FWC.
Id. Second, and more importantly, the trial court’s determination
that sovereign immunity did not bar Appellees’ takings claims
against the FWC resolved a pure question of law. Thus, our review
is de novo. Plancher v. UCF Athletics Ass'n, 175 So. 3d 724, 725 n.3
(Fla. 2015). And this Court is not bound by the trial court’s view
or its legal conclusions. Leamer v. White, 156 So. 2d 567, 571 (Fla.
1st DCA 2015).
To state a legally sufficient claim for takings, Appellees were
required to allege that (1) the FWC required them to submit to a
permanent physical occupation of their land or (2) the FWC
enacted a regulation or imposed a condition that completely
deprived them of all economically beneficial use of their land. See
Teitelbaum v. S. Fla. Water Mgmt. Dist., 176 So. 3d 998, 1003 (Fla.
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3d DCA 2015); Certain Interested Underwriters At Lloyd's London
Subscribing to Certificate No. TPCLDP217477 v. City of St.
Petersburg, 864 So. 2d 1145, 1148 (Fla. 2d DCA 2003). Here,
Appellees failed to allege either form of takings in their complaint.
The first category of takings, a permanent physical occupation
of private property, occurs when “[t]he government physically
occupies property [and] permanently deprives the owner of his
‘bundle’ of private property rights, including the right to possess
and dispose, as well as the right to prevent the government from
using the occupied area.” Fla. Game & Fresh Water Fish Comm’n
v. Flotilla, 636 So. 2d 761, 764 (Fla. 2d DCA 1994). In Flotilla, the
Commission established two preservation zones, consisting of
forty-eight acres, to protect bald eagles’ nests in a 173-acre plot of
land that was being developed as a residential subdivision. Id. at
763. The Second District rejected the plaintiffs’ claim that the
establishment of the preservation zones constituted a taking of
their property because the plaintiffs were denied the opportunity
to exploit a property interest they previously believed was
available for development. The court determined the allegations
were insufficient to establish a taking because the plaintiffs
retained the desired use of the majority of their land. Id. at 765.
Here, Appellees do not, and cannot, allege that the FWC has
forced them to submit to a permanent physical occupation of their
land. The alleged physical occupation -- i.e., sporadic trespasses
by deer dog hunters and their dogs during the forty-four days of
the year when deer dog hunting is authorized -- is transitory, not
permanent. And the handful of trespasses that have occurred on
each of Appellees’ individual properties do not rise to the level of a
permanent, physical occupation of Appellees’ property. See Morton
v. Gardner, 513 So. 2d 725, 729 (Fla. 3rd DCA 1987) (“In Florida,
an action for inverse condemnation does not arise from a
temporary ‘taking.’”).
Neither do the Appellees allege that the FWC has deprived
them of all economically beneficial use of their property. Rather,
Appellees allege that they were deprived of their right to exclude
people from their property during deer dog hunting season. But
this allegation ignores the fact that Appellees are free to exclude
the deer dog hunters and dogs from their property by pursuing
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criminal or civil remedies against the trespassing hunters and
owners of the deer dogs. The FWC has not deprived Appellees of
any right to pursue the third-party wrongdoers. Further,
Appellees do not allege that they were deprived of all economically
beneficial use of their property, particularly when the deer dog
hunting season is limited to forty-four days and the trespasses
were fleeting and sporadic. Because Appellees failed to plead the
required elements to state legally sufficient takings claims against
the FWC, the trial court should have granted the FWC’s motion
for summary judgment on sovereign immunity grounds.
2. Tort Claims – Nuisance
Turning to Appellees’ nuisance claims, the FWC argued below
and on appeal that sovereign immunity barred the claims. The
trial court, again relying on Crowley, rejected the FWC’s sovereign
immunity argument. And, again, the trial court’s reliance on
Crowley was misplaced. The Second District in that case did not
consider whether sovereign immunity barred the plaintiff’s
nuisance claims against the government, because the plaintiff did
not challenge the trial court’s dismissal of the nuisance claims.
993 So. 2d at 607-08. Thus, Crowley offers no insight in
determining whether sovereign immunity bars a claim of nuisance
against the state and its subdivisions.
Here, the FWC’s sovereign immunity defense to Appellees’
nuisance claims emanates from section 768.28(1), Florida
Statutes, and the doctrine of separation of powers. Section
768.28(1) provides a broad waiver of sovereign immunity to the
state and its subdivisions for tort liability “under circumstances in
which the state or agency or subdivision, if a private person, would
be liable to the claimant, in accordance with the general laws of
the state.” But even where the State owes a duty of care to a
claimant, “constitutional separation-of-powers considerations
require that certain discretionary or planning level governmental
functions remain immune from tort liability.” Mosby v. Harrell,
909 So. 2d 323, 326 (Fla. 1st DCA 2005). Thus, our analysis of
whether sovereign immunity bars Appellees’ nuisance claims
against the FWC proceeds in two steps. First, we must determine
whether there is an underlying common law or statutory duty of
care to Appellees with respect to the FWC’s actions to authorize
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deer dog hunting in the Blackwater WMA. Trianon Park Condo.
Ass’n, Inc. v. City of Hialeah, 468 So. 2d 912, 917 (Fla. 1985).
Second, we must consider whether the FWC’s actions are
discretionary or operational in nature. Id.
With regard to the first step, we conclude the FWC owes no
duty to Appellees to stop third parties acting in violation of the
FWC’s rules and state law from trespassing onto Appellees’ private
property even though the FWC’s rules authorize deer dog hunting
on public lands adjacent to private property owned by Appellees.
The FWC’s rules require deer dog hunters to obtain licenses and
permits, limit the season during which deer dog hunting occurs,
define the public lands on which deer dog hunting may occur, and
require the use of remote tracking and behavior correction devices
on each dog. On those occasions where hunters or their dogs
strayed from the public lands where they were authorized to hunt
and trespassed onto Appellees’ private property, they did so in
violation of the FWC’s rules and regulations, as well as state laws
prohibiting trespass, criminal mischief, and the like. Because
“there is no common law duty to prevent the misconduct of third
persons,” the FWC is not liable to Appellees for the failure of the
hunters to abide by the FWC’s rules and state law prohibiting
trespass onto private property. Id.
Nor did the FWC owe a statutory or common-law duty to
Appellees to monitor compliance by hunters with the FWC’s deer
dog hunting rules and regulations, particularly when the hunters
had strayed beyond the public lands on which the FWC had
authorized hunting. See Brown v. Dep’t of Health & Rehab. Servs.,
690 So. 2d 641 (Fla. 1st DCA 1997) (holding that HRS had no
common-law duty to the parents of children who were sexually
abused at a day-care facility to monitor compliance with the
permit’s condition that a known sexual abuser would not visit the
day-care facility). We also note that some of the nuisances alleged
in the complaint include criminal acts such as threats to destroy
Appellees’ property, threats to Appellees’ safety, the setting of
several arson fires, and the painting of graffiti on Appellees’
property. It is absurd to suggest that the FWC is responsible for
the criminal acts of third parties or that the deer dog hunting
regulations invited such actions by the hunters. Because the FWC
owed no duty to Appellees to prevent trespasses onto their
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property by the hunters or their dogs, the FWC was entitled to
sovereign immunity.
But even if the FWC did owe a duty of care to Appellees to
prevent the trespasses by third parties onto their private property,
sovereign immunity would bar Appellees’ nuisance claims because
the FWC’s actions to authorize hunting on public lands are purely
discretionary functions of the FWC. Mosby, 909 So. 2d at 327. A
discretionary function is one that involves “an exercise of executive
or legislative power such that a court’s intervention by way of tort
law would inappropriately entangle the court in fundamental
questions of policy and planning.” Id. at 328. By contrast, an
operational function is one that is not central or necessary to policy
or planning, but instead relates to how those polices or plans will
be implemented. Id. Certain discretionary functions are inherent
in the act of governing and are immune from suit. City of Freeport
v. Beach Cmty. Bank, 108 So. 3d 684, 687 (Fla. 1st DCA 2013);
Trianon Park, 468 So. 2d at 918. These types of discretionary
decisions may not be second guessed by the judiciary. City of Ocala
v. Graham, 864 So. 2d 473, 476 (Fla. 5th DCA 2004) (holding that
certain discretionary functions are inherent in the act of governing
and are immune from suit).
Pursuant to its constitutional authority, a core function of the
FWC is to determine where, when, and what types of hunting are
permitted on public land, including deer dog hunting in the
Blackwater WMA. “[H]unting, fishing, and the taking of game are
a valued part of the cultural heritage of Florida” and “the citizens
of Florida have a right to hunt, fish, and take game, subject to the
regulations and restrictions prescribed by general law and by s. 9,
Art. IV of the State Constitution.” § 379.104, Fla. Stat. To secure
these rights, Florida’s citizens established the FWC in their
Constitution, vesting the FWC with exclusive legislative authority
to regulate hunting. Art. IV, § 9, Fla. Const. The rules of the FWC
have the force of a legislative act, and the Legislature is prohibited
from adopting statutes that conflict with those rules. Wakulla
Commercial Fisherman Ass’n, Inc. v. Fla. Fish & Wildlife
Conservation Comm’n, 951 So. 2d 8, 9 (Fla. 1st DCA 2007) (quoting
Airboat Ass’n of Fla., Inc. v. Fla. Game & Fresh Water Fish
Comm’n, 498 So. 2d 629, 631 (Fla. 3d DCA 1986)). The supreme
court has explicitly stated that the enactment of, or failure to
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enact, laws or regulations, or the issuance of, or refusal to issue,
licenses, permits, variances, or directives are actions inherent in
the act of governing. Trianon Park, 468 So. 2d at 919. Because
the FWC’s regulation of deer dog hunting involves actions inherent
in the act of governing, those actions constitute discretionary acts
and the doctrine of sovereign immunity bars Appellees’ nuisance
claims against the FWC. Thus, the trial court erred when it denied
the FWC’s motion for summary judgment.
B. Injunction
Finally, the trial court’s injunction violates the separation of
powers doctrine, and the injunction is overly broad. Florida has a
vigorous separation of powers doctrine. Citizens for Strong Sch.,
Inc. v. Fla. State Bd. of Educ., 232 So. 3d 1163, 1170 (Fla. 1st DCA
2017) (acknowledging that the Florida Constitution requires a
strict separation of powers between the branches of government).
The judiciary violates the doctrine of separation of powers if it
directs an administrative agency to perform its duties in a
particular manner. Fla. Dep’t of Children & Families v. J.B., 154
So. 3d 479, 481 (Fla. 3d DCA 2015) (holding that the judicial
branch is prohibited from interfering with the discretionary
functions of an executive agency). Moreover, a court may not direct
an agency to perform its duties in a manner that is not feasible.
Id. Here, the trial court’s injunction effectively prohibits the FWC
from exercising its authority to issue licenses and permits for deer
dog hunting and requires the FWC to perform its duties in a way
that is not feasible.
The injunction directs the FWC to “abate the nuisance of the
deer hunting dogs from trespassing onto the property of the
plaintiffs, and of the deer dogs and their hunters from interfering
with the plaintiffs’ right to the quiet enjoyment of their private
property.” The language of the injunction reflects an intent to
preclude the FWC from issuing any deer dog hunting permits. And
any doubt that this was the intended import of the injunction was
removed when the trial court issued its order dissolving this
Court’s automatic stay of the 2016 order. Although the trial court
acknowledged that “it would be inappropriate and overreaching for
the Court to direct the FWC not to physically release the licenses
and permits for the upcoming hunting season,” in the very next
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paragraph of its order, the trial court determined that the issuance
of licenses and permits for deer dog hunting “constitute[s] a
nuisance and contribute[s] to the interference with the plaintiffs’
right to the quiet enjoyment of their private property, and there is
no other way to protect those constitutional rights at this juncture
than to vacate the stay.” Because the injunction requires the FWC
to abate the nuisance, and the order vacating the stay clarifies that
the very issuance of permits and licenses for deer dog hunting
constitutes a nuisance, it is crystal clear that the injunction
prohibits the FWC from issuing permits and licenses for deer dog
hunting in the Blackwater WMA. 2 Thus, the injunction leaves the
FWC with no discretion or flexibility whatsoever to exercise its
constitutional authority to regulate hunting and constitutes a
judicial encroachment into the legislative authority of the FWC.
The injunction is also overly broad. An injunction may not be
so broad as to leave parties against whom an injunction is entered
in doubt as to what they are permitted to do. See Angelino v. Santa
Barbara Enters., LLC, 2 So. 3d 1100, 1104 (Fla. 3d DCA 2009).
Here, the injunction is impossible for the FWC to comply with
because it holds the FWC accountable for the actions of third
parties over which the FWC has no control. Even if the FWC
rescinded its rules and regulations authorizing deer dog hunting
in the Blackwater WMA, and allowed no deer dog hunting
whatsoever, the injunction as worded requires the FWC to abate
the nuisance caused by trespasses by unlicensed deer dog hunters
and their dogs onto Appellees’ property. And, were the injunction
permitted to take effect, the FWC and its Commissioners could be
subject to contempt proceedings resulting in fines or incarceration.
See Dep’t of Children & Families v. R.H., 819 So. 2d 858, 861-62
(Fla. 5th DCA 2002).
IV. Conclusion
2 This conclusion is supported by the following statement
made by the trial court during a hearing addressing Appellees’
motion to vacate the automatic stay: “I don’t have an evidentiary
basis as to how many licenses for the upcoming season have been
issued. I’m quite frankly very disappointed to learn that any have
been.”
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The FWC was entitled to summary judgment because
Appellees’ takings claims and nuisance claims were barred by the
doctrine of sovereign immunity. The injunction entered by the
trial court was overbroad and violated the separation of powers.
Accordingly, we REVERSE the order denying the FWC’s motion for
summary judgment, DISSOLVE the injunction, and REMAND for
entry of summary judgment in favor of the FWC.
B.L. THOMAS, C.J., concurs; LEWIS, J., dissents with opinion.
_____________________________
Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________
LEWIS, J., dissenting.
I respectfully dissent and would affirm the trial court in all
respects. In doing so, I am mindful of the conflicting interests that
exist in this case. However, for the following reasons, my view of
the law when applied to the facts leads me to conclude that
sovereign immunity does not apply to Appellees’ takings and
nuisance claims against Appellant and that the temporary
injunction was properly entered.
FACTUAL AND PROCEDURAL HISTORY
In their Amended Complaint, each Appellee alleged both a
takings claim and a nuisance claim against Appellant. Appellees
also moved for the entry of a temporary injunction, requesting that
the trial court enjoin Appellant from issuing any permits for deer
dog hunting in a certain portion of the Blackwater WMA and
enjoin any deer dog hunting from occurring in that same portion
during the pendency of the suit. Appellant moved for summary
judgment, arguing in part, “The plaintiffs have filed a nuisance
count . . . and a takings count . . . . The Plaintiffs[’] claims are
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barred by the doctrine of separation of powers, sovereign immunity
and prior decisions of this court.”
During the hearing on the motions for injunctive relief and
summary judgment, several Appellees testified. One Appellee
described deer dog hunting as being “extremely disruptive” and
“potentially extremely dangerous” to his livestock, and he testified
that he has to put his own dogs in kennels when he hears the
hunting dogs approach his property, and it can take anywhere
from forty-five minutes to an “hour plus” for Appellant’s “guys” to
arrive if he catches the hunting dogs. The hunters are not pleased
if the dogs are in Appellee’s possession, and they try to intimidate
“you into releasing their dog back to them.” There had been
instances on Appellee’s property during which his horses, because
of the frenzy that ensues when the hunting dogs arrive, ran into
fences and gates, tripped on tree stumps, and slipped on their side.
When asked about harassment, Appellee testified that the Santa
Rosa County Building Inspector threatened not to pass his
building inspections, and a dog hunter threatened to burn his
house down. His mailbox had been shot, and graffiti had been
painted on the road in front of his house. Four arson fires had been
set around his property between March 2014 and December 2014.
He detailed his efforts to remedy the issue, including attending
meetings, proposing rule changes, and meeting with one of
Appellant’s directors in October 2013.
Other Appellees testified about threats made to them in the
past by various hunters, about the danger they felt in going into
their yards during deer dog hunting season, about how the fences
they constructed did not stop the dogs from trespassing and
causing damage upon their property, about dog fights that
occurred between their own dogs and the hunting dogs, and about
their repeated efforts to have Appellant remedy the situation. One
Appellee testified that deer dog hunting interfered with the
enjoyment of his property because he was not able to still hunt
when “about 15 dogs will come running through [his] food plot.”
Another Appellee testified that the hunters had blocked “our roads
and you have to wait for them to move,” they threw all types of
trash on her driveway, and although she had horses on her
property at one time, she now keeps them at a friend’s home
because of how spooked they would become from the shooting and
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lights shining on them. Although a “correction device
requirement” for the hunting dogs took effect on July 1, 2016,
evidence presented below in support of Appellees’ motion to vacate
the automatic stay showed that dog trespasses continued on
Appellees’ property during the 2016-2017 hunting season. One of
Appellant’s employees testified that the potential for trespasses
still existed, that the rule did not contain any training certification
requirement for hunters, that hunters might not train their dogs
properly using the collars, and that the rule did not mandate that
collars automatically trigger themselves if the dogs crossed over
certain GPS positions.
In the Order on Evidentiary Hearing and Hearing on
Summary Judgment Motion, the trial court found that the credible
testimony clearly and convincingly established that deer dog
hunting days invade and interfere with Appellees’ quiet enjoyment
of their property, that the responsible hunter rule is not
particularly helpful to private property owners who are no longer
young and able-bodied, as catching a deer-chasing dog is not an
easy task, and that many of the private property owners are
effectively denied the use and enjoyment of their property during
the 12.1% of the year when Appellant allows deer dog hunting in
the Blackwater WMA. After detailing the testimony of Appellees,
the trial court found that the case “should not be viewed as
weighing competing interests of the private property owners
against the desires of the FWC-authorized public hunters” and
that the “rights of the private property owners to the enjoyment of
their private land are not conditioned upon, nor subject to, those
who want to hunt adjacent public lands.” The court further found
that the rights of private property owners cannot and should not
be interfered with by state government and those authorized to
participate in deer dog hunting. The trial court explained that
Appellees “are no longer asking the Court to change the FWC rules
or regulations, nor to micromanage the deer hunting program that
is part of FWC’s wild game management responsibility.” Instead,
according to the trial court, Appellees were requesting a ruling
that the flood of hunters and their dogs trespassing on their
property constituted a nuisance and a taking of their property.
On the issue of sovereign immunity, the trial court
determined that Appellant was not immune from liability for
16
constitutionally-based takings claims or from nuisance claims.
The trial court set forth:
Whether, and the extent to which, FWC’s actions
constitute a taking will be decided based on the evidence
submitted at the jury trial of this case, as will the amount
of any resulting damages. For now, it is clear that the
trespasses onto the plaintiffs’ property and the
interference with the plaintiffs’ property rights is a direct
result of the FWC’s continued allowance of the deer dog
hunting in an area known to contain private property,
and does constitute a nuisance. The plaintiffs are
entitled to entry of an injunction requiring FWC to abate
the nuisance during the pendency of these proceedings.
The trial court ordered Appellant “to abate the nuisance of the deer
hunting dogs from trespassing onto the property of the plaintiffs,
and of the deer dogs and their hunters from interfering with the
plaintiffs’ right to the quiet enjoyment of their private property.”
ANALYSIS
Summary Judgment
Unlike the majority, I agree with the trial court that the
doctrine of sovereign immunity does not apply to this case. With
respect to Appellees’ inverse condemnation claims, the majority
reverses based upon its determination that Appellees failed to
state legally sufficient takings claims. While the majority is
correct that Appellant made such an argument in its summary
judgment motion, that argument came after the argument that
“[t]he plaintiffs have filed a nuisance count . . . and a takings count
. . . . The Plaintiffs[’] claims are barred by the doctrine of
separation of powers, sovereign immunity and prior decisions of
this court.” On appeal, Appellant represents that it argued below
that it was entitled to summary judgment “based on the doctrines
of separation of powers and sovereign immunity.” As
acknowledged by the majority, the trial court did not rule as to
whether the takings claims were legally sufficient but instead
directly addressed the applicability of the separation of powers
doctrine and sovereign immunity. More importantly for purposes
of what issues are presently before this Court, Appellant, in its
17
Initial Brief, frames the issues on appeal by stating that it is
appealing the entry of the temporary injunction and “the denial of
[its] motion for summary judgment to the extent that the summary
judgment determined as a matter of law that [it] is not entitled to
sovereign immunity.” In its Reply Brief, Appellant acknowledges
that “courts in Florida have established that sovereign immunity
does not bar all inverse condemnation claims and common law
nuisance claims” against state agencies, commissions, and other
government entities and sets forth, “FWC believes and is arguing
that sovereign immunity bars Appellees from recovering under
these theories under the facts” of this case. Notwithstanding the
foregoing, Appellees, pursuant to the majority opinion, will be
prevented from pursuing their inverse condemnation claims
against Appellant on a basis not expressly ruled upon by the trial
court and not argued by the parties on appeal. Such a disposition,
in my opinion, is wholly inappropriate. See Doe v. Baptist Primary
Care, Inc., 177 So. 3d 669, 673 (Fla. 1st DCA 2015) (noting that an
appellant who presents no argument as to why a trial court’s ruling
is incorrect on an issue has abandoned the issue and that it is not
the function of an appellate court to re-brief an appeal); Anheuser-
Busch Cos. v. Staples, 125 So. 3d 309, 312 (Fla. 1st DCA 2013)
(“[W]e are not at liberty to address issues that were not raised by
the parties.”).
Turning to the merits of the issue that is actually before us,
the trial court properly relied upon Crowley Museum & Nature
Center, Inc. v. Southwest Florida Water Management District, 993
So. 2d 605 (Fla. 2d DCA 2008), for the proposition that sovereign
immunity does not bar such claims. There, as the majority notes,
the appellee conceded on appeal that the immunity statute at issue
could not be constitutionally applied to preclude the inverse
condemnation claim brought by the appellant. Id. at 608.
However, what the majority fails to mention is the Second
District’s statement, “We conclude that the court erred in
determining that the District enjoys sovereign immunity from a
claim for inverse condemnation.” Id. at 610; see also Hansen v.
City of Deland, 32 So. 3d 654, 655 (Fla. 5th DCA 2010) (“A property
owner can file an inverse condemnation claim to recover the value
of property that has been de facto taken by a government entity.”);
Drake v. Walton Cty., 6 So. 3d 717, 720 (Fla. 1st DCA 2009) (“We
have previously held that a county takes private property when it
18
directs a concentrated flow of water from one property onto
another, permanently depriving the owner of all beneficial
enjoyment of their property.”); Schick v. Fla. Dep’t of Agric., 504
So. 2d 1318, 1318 (Fla. 1st DCA 1987) (“[A] cause of action for
inverse condemnation will lie against a government agency, which
by its conduct or activities, has taken private property without a
formal exercise of the power of eminent domain.”). Based upon
such, Appellant is not immune under the doctrine of sovereign
immunity from Appellees’ inverse condemnation claims, and
reversal of the summary judgment order as to those claims is
improper.
With respect to Appellees’ nuisance claims, while the majority
concludes that Appellant is not liable to Appellees for hunters’
misconduct, the situation at issue in this case is far different from
the facts of Brown v. Department of Health and Rehabilitative
Services, 690 So. 2d 641 (Fla. 1st DCA 1997), a case cited by the
majority. There, this Court held that the agency had no common
law duty to parents of children who were sexually abused at a
daycare facility to monitor compliance with the permit’s condition
that a known sexual abuser would not visit the facility and noted
that the complaints did not allege “the existence of any premises
or location either owned, operated, or maintained by HRS.” Id. at
644. Here, in contrast, Appellant authorized hunting on the public
land at issue. As the supreme court has explained, “[O]nce a
governmental entity builds or takes control of property or an
improvement, it has the same common law duty as a private
person to properly maintain and operate the property.” Trianon
Park Condo. Ass’n v. City of Hialeah, 468 So. 2d 912, 921 (Fla.
1985). Therefore, Appellees’ contention that Appellant, once it
made its decision to allow hunting in the Blackwater WMA,
undertook the same duty to properly maintain and operate the
property as a private person would is well-taken. See Dep’t of
Transp. v. Burnette, 384 So. 2d 916, 922 (Fla. 1st DCA 1980)
(“Every remedy which would be available against an individual for
such a repeated trespass or continuing nuisance . . . is now
available against the State.”).
Not only do I disagree with the majority that Appellant owes
no duty to Appellees, but I also disagree with the majority’s
conclusion that Appellant’s actions at issue are discretionary in
19
nature and, thus, immune from suit under sovereign immunity. In
Trianon Park Condominium Ass’n, the supreme court discussed
sovereign immunity, explaining that “certain discretionary
functions of government are inherent in the act of governing and
are immune from suit.” 468 So. 2d at 918. In determining whether
an act is discretionary, a court should evaluate the case under the
following test:
(1) Does the challenged act, omission, or decision
necessarily involve a basic governmental policy, program,
or objective? (2) Is the questioned act, omission, or
decision essential to the realization or accomplishment of
that policy, program, or objective as opposed to one which
would not change the course or direction of the policy,
program, or objective? (3) Does the act, omission, or
decision require the exercise of basic policy evaluation,
judgment, and expertise on the part of the governmental
agency involved? (4) Does the governmental agency
involved possess the requisite constitutional, statutory,
or lawful authority and duty to do or make the challenged
act, omission, or decision?
Id. If all of the questions can be answered in the affirmative, then
the governmental conduct is discretionary and non-tortious. Id. If
one or more questions are answered in the negative, then further
inquiry is necessary depending on the facts and circumstances
involved. Id. at 918-19. The test is intended to assist in
distinguishing between discretionary planning “or judgment
phase” and the operational phase of government. Id. at 919.
The Second District in Rumbough v. City of Tampa, 403 So.
2d 1139, 1142 (Fla. 2d DCA 1981), explained that section 768.28
waives sovereign immunity in nuisance actions. It went on to
conclude, however, that the appellants could not recover against
the City of Tampa for its decision to expand a landfill because the
operation of the landfill was “nothing more than an
implementation of the decision which was made at the planning
level” and the City was exercising a discretionary function. Id.
Were this a case where Appellant had decided to increase or
expand deer dog hunting, Rumbough would support an argument
that that decision was governmental in nature or discretionary
20
and immune from challenge. However, the issue in this case is not
the expansion of deer dog hunting. The issue concerns the
management of deer dog hunting in the Blackwater WMA or, in
other words, the implementation of Appellant’s policy to allow
hunting therein. As the supreme court has explained, an act is
operational if it “‘is one not necessary to or inherent in policy or
planning, that merely reflects a secondary decision as to how those
policies or plans will be implemented,’” whereas discretionary acts
involve “‘an exercise of executive or legislative power such that, for
the court to intervene by way of tort law, it inappropriately would
entangle itself in fundamental questions of policy and planning.’”
Pinellas Park v. Brown, 604 So. 2d 1222, 1226 (Fla. 1992) (holding
that, in the absence of a serious emergency, the method by which
law enforcement engages in hot pursuit constitutes an operational
function that is not immune from liability if it is accomplished in
a manner contrary to reason and public safety (citation omitted)
(emphasis in original)). While Appellant is correct that its decision
to allow deer dog hunting in the Blackwater WMA and to issue
permits to hunters is a discretionary decision to which sovereign
immunity would apply, this case deals with Appellant’s
implementation of its policies and plans regarding deer dog
hunting in the Blackwater WMA. Moreover, the trial court did not
inappropriately entangle itself in fundamental questions of policy
and planning in this case.
In an out-of-state case involving deer dog hunting and private
parties, the appellant was the owner of a plantation consisting of
approximately 841 acres, and the appellee owned large tracts of
land surrounding the appellant’s land to the east, south, and west.
FOC Lawshe Ltd. P’ship, FOC v. Int’l Paper Co., 574 S.E.2d 228,
230 (S.C. Ct. App. 2002). The appellant invested time and money
to improve its land to be used for hunting and to stock the property
with wildlife. Id. The appellee primarily utilized its land for
growing timber and also leased its property to several hunt clubs
to use for hunting deer. Id. During hunting season, the hunt clubs
commonly hunted deer on the same two days that the appellant
hunted deer and quail on its land. Id. The hunt clubs that leased
the land from the appellee utilized dogs while they were hunting,
whereas the appellant’s hunters were “still” hunters and did not
use dogs. Id. The dogs released by the hunt clubs frequently
crossed over onto the appellant’s property and disrupted the
21
hunting by the appellant’s members and guests. Id. The dogs had
also raided quail pens on the appellant’s property. Id. The
appellant brought suit against the appellee, seeking a temporary
restraining order and damages, basing its claim on a theory of
nuisance arising from the disruption caused by trespassing dogs.
Id. The trial court found that the appellant failed to establish the
requirements necessary for issuing a temporary restraining order
and denied the motion. Id. The appellee argued on appeal that it
could not be liable for a nuisance arising from its tenants’ use of
the land. Id. at 231. The appellate court explained that the
appropriate analysis was whether the appellee had complete
control over the land and whether the alleged nuisance necessarily
resulted from the ordinary use of the land by the appellee’s tenants
or for “the purpose for which [the lands] were let.” Id. at 232. The
appellate court determined that the appellant alleged sufficient
facts to state a cause of action against the appellee. Id.
Although Appellant is correct that it is not the one allegedly
trespassing on Appellees’ property, the evidence established that
the dogs of some hunters, whom Appellant permits to hunt on
state-owned property, are trespassing on Appellees’ land. If
Appellant were a private party who owned the Blackwater WMA
and trespassing dogs were running from that property onto
Appellees’ property, FOC Lawshe Ltd. Partnership, FOC would
support a nuisance claim.
With respect to governmental entities allowing certain
activities on state lands that create a nuisance, Mark v. State ex
rel. Department of Fish and Wildlife, 84 P.3d 155 (Or. Ct. App.
2004), is instructive. In that case, the Oregon Department of Fish
and Wildlife (“Department”) and the Division of State Lands
appealed from a judgment issuing a permanent injunction in a
nuisance action. Id. at 155. It was noted that the Division of State
Lands owned and the Department leased and managed property,
including a public beach adjacent to the plaintiffs’ property. Id.
The trial court determined that the intrusive presence and
behavior of nude sunbathers using the public beach and the
Department’s failure to regulate or otherwise exercise control over
certain aspects of that use constituted a private nuisance and
issued a permanent injunction requiring the Department to abate
the nuisance. Id. The Oregon appellate court explained that the
22
gravamen of the plaintiffs’ private nuisance claim was that the
defendants, who owned and controlled the adjacent land, failed to
adequately control the conduct of their invitees. Id. at 161. The
appellate court further explained that the act of those invitees
created a nuisance on the plaintiffs’ land. Id. The court noted that
the defendants challenged the scope and content of the permanent
injunction and contended that the mandatory provisions offended
principles of separation of powers in that the provisions
impermissibly impinged on the prerogatives of the Department.
Id. at 165. The appellate court rejected that argument, finding
instead that the terms of the injunction afforded the Department
considerable flexibility in choosing the means by which the
mandated ends were to be accomplished. Id.; see also Maday’s
Wholesale Greenhouses, Inc. v. Indigo Grp., Inc., 692 So. 2d 207,
209 (Fla. 5th DCA 1997) (noting that the appellant argued that the
manner in which Port Orange was using its own property
constituted an unlawful diversion of surface water and
represented a continuing trespass and nuisance, agreeing with the
appellant that a governmental property owner does not enjoy
sovereign immunity against a claim that the government’s use of
its own property results in an improper diversion of surface water
onto private property, and holding that a cause of action could exist
against Port Orange for injunctive relief or abating a private
nuisance and related damages).
Just as the court determined in Mark that the Department’s
failure to regulate or exercise control over certain aspects of the
use that it allowed on state property constituted a nuisance,
Appellees should be permitted to pursue their claims that
Appellant’s alleged failure to regulate or exercise control over deer
dog hunters and their dogs has created a nuisance. While, as
stated, Appellant’s decision to allow deer dog hunting in the
Blackwater WMA is a discretionary or planning-level decision,
Appellant offers no legitimate reason why it should not then be
responsible for ensuring that hunters and their dogs are not
creating a nuisance for adjacent property owners. That
responsibility is operational in nature. Given such, the trial court
did not err in denying summary judgment on the sovereign
immunity issue.
Temporary Injunction
23
Turning to the temporary injunction, a trial court must
determine whether a petition for such demonstrates a prima facie,
clear legal right to the relief requested. SunTrust Banks, Inc. v.
Cauthon & McGuigan, PLC, 78 So. 3d 709, 711 (Fla. 1st DCA
2012). To establish a prima facie case for a temporary injunction,
a petitioner must show four factors: (1) the likelihood of
irreparable harm; (2) the unavailability of an adequate remedy at
law; (3) a substantial likelihood of success on the merits; and (4)
that a temporary injunction would serve the public interest. Id.
The petitioner has the burden of providing competent, substantial
evidence that satisfies each of these elements. Id. An appellate
court’s review of a ruling on a temporary injunction is hybrid in
nature in that legal conclusions are reviewed de novo while factual
findings are reviewed under the abuse of discretion standard. Id.
As the majority explains, Appellant argues that the
temporary injunction is overly broad, is impossible to comply with,
and effectively orders it to change its rules and regulations without
expressly stating so. It also contends that the judiciary violates
the separation of powers doctrine if it orders an administrative
agency to perform its duty in a certain way. In support of this
contention, Appellant cites Crowley Museum & Nature Center, Inc.
That case, as previously cited, flowed from the appellee’s issuance
of permits allowing certain farming operations to engage in flood
irrigation, which involved pumping groundwater from the
underground aquifer and flooding the fields up to the root zones of
the plants. 993 So. 2d at 607. The excess flood irrigation water
flowed off certain farms into a swamp, and when the swamp basin
filled, water then flowed downstream onto the appellant’s land. Id.
When the appellee could not provide a specific time period for
correcting the flooding problem, which was causing trees to die, the
appellant initiated suit against the upstream farming operations.
Id. The appellant raised claims for trespass and private nuisance
against the appellee, as well as claims for inverse condemnation
and negligence. Id. The trial court granted the appellee’s motion
to dismiss the claims on sovereign immunity grounds and found
that injunctive relief would impermissibly require it under the
separation of powers doctrine to direct the appellee as to how to
remedy the flooding problem on the appellant’s property. Id. On
appeal, the appellant argued that the trial court erred in
dismissing the complaint, but it did not challenge the court’s ruling
24
as it pertained to the claims for private nuisance, trespass, or
negligence. Id. Instead, the appellant argued that the trial court
erred in determining that section 373.443, Florida Statutes, which
addresses immunity from liability pertaining to storm water
management systems, provided for sovereign immunity from its
inverse condemnation claim because such a constitutional claim
could not be barred by a legislative grant of immunity. Id. at 608.
The Second District affirmed the trial court’s order dismissing the
damages claims against the appellee “with the exception of the
claim for inverse condemnation.” Id. As to injunctive relief, the
Second District determined that the trial court was correct that
the separation of powers doctrine precluded it from entering an
injunction that required an administrative agency to perform its
duties in a particular way but that “a court may enter an
injunction that gives an administrative agency the flexibility to
choose the means by which to fulfill its duties.” Id. at 609. While
the Second District was concerned with the feasibility of the
appellant’s requests as to injunctive relief, it explained, “[T]he
relief requested on the face of the [appellant’s] complaint does not
require the District to manage the lands in Flatford Swamp in a
particular way but gives the District the flexibility to choose the
means by which to manage its lands in Flatford Swamp.” Id. The
Second District concluded that the trial court erred in dismissing
the claim for injunctive relief and in determining that the appellee
enjoyed sovereign immunity from a claim for inverse
condemnation. Id.
In granting the temporary injunction in this case, the trial
court set forth, “FWC is hereby required to abate the nuisance of
the deer hunting dogs from trespassing onto the property of the
plaintiffs, and of the deer dogs and their hunters from interfering
with the plaintiffs’ right to the quiet enjoyment of their private
property.” As in Crowley Museum & Nature Center, Inc., where
the injunction provided the appellee flexibility to choose the means
by which to manage its land, Appellant was given the flexibility to
choose the means by which it would abate trespassing dogs on
Appellees’ property. Appellant fails to explain how it is impossible
to comply with the injunction.
Appellant cites Angelino v. Santa Barbara Enterprises, LLC,
2 So. 3d 1100 (Fla. 3d DCA 2009), for the proposition that an
25
injunction must be specifically tailored to each case, may not be
overly broad, and may not leave one against whom an injunction
is entered in doubt as to what is supposed to be done. Appellant
also cites City of Oviedo v. Alafaya Utilities, Inc., 704 So. 2d 206
(Fla. 5th DCA 1998), for the proposition that there are
circumstances in which an injunction may be entered by a trial
court if an injunction does not unduly infringe on a city’s
regulatory powers. In City of Oviedo, the Fifth District affirmed a
temporary injunction enjoining the appellant from withholding
approval of planned sewer improvements by the appellee on the
ground that the appellee refused to sign a franchise agreement
proffered by the appellant. Id. at 207. The Fifth District noted
that the preliminary injunction enjoined the appellant “‘from
withholding development on the grounds that Alafaya has not
entered into a franchise agreement with the City’” and set forth
that “[b]ecause Oviedo is still free to adopt reasonable rules and
regulations pertaining to the use of its rights of way . . ., the
injunction entered does not unduly hamper Oviedo’s regulatory
powers.” Id. at 208 (emphasis in original).
Any argument that Appellant is in doubt as to what the trial
court directed is meritless. The injunction is clear that Appellant
is to abate the nuisance of deer hunting dogs on Appellees’
property. As stated, the trial court left it up to Appellant to decide
how that directive is to be accomplished and how the alleged
nuisance in the Blackwater WMA is to be abated. Like the
situation in City of Oviedo, the injunction in this case does not
unduly hamper Appellant’s authority in the Blackwater WMA.
In support of its decision, the majority refers to the trial
court’s order vacating the automatic stay that was entered while
this appeal was pending and the court’s language characterizing
the issuance of licenses and permits as a nuisance. Unlike the
majority, I do not read the order on appeal to prohibit the issuance
of licenses and permits. As Appellant’s counsel noted below about
the language in the order vacating the stay, “[T]hat was something
that wasn’t included in the terms of the injunction orders that were
entered a year ago,” and the order vacating the stay “contained
some new language that actually went a little bit further” than the
order on appeal. In fact, we granted Appellant’s motion to
reinstate the automatic stay because the language used in the
26
order vacating the stay improperly expanded the scope of the
temporary injunction to include the issuance of licenses and
permits. Thus, an affirmance of the order on appeal would in no
way prohibit Appellant from issuing hunting permits. Instead,
Appellant would be free to choose how to keep hunting dogs from
trespassing onto Appellees’ property. As such, entry of the
injunction was appropriate.
CONCLUSION
In conclusion, because the trial court did not err in denying
the motion for summary judgment and in entering the temporary
injunction, I would affirm.
_____________________________
Rebekah A. Davis of Dunlap and Shipman, P.A., Tallahassee, for
Appellant.
David A. Theriaque, S. Brent Spain, and Terrell K. Arline of
Theriaque & Spain, Tallahassee, for Appellees.
27