DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
B&L SERVICE, INC.,
Appellant,
v.
BROWARD COUNTY, a political subdivision of the State of Florida, and
RASIER-DC, LLC,
Appellees.
No. 4D19-2100
[July 29, 2020]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Sandra Perlman, Judge; L.T. Case No. CACE16-
002723(04).
Mark J. Stempler of Becker & Poliakoff, P.A., West Palm Beach,
for appellant.
Rocio Blanco Garcia of the Broward County Attorney’s Office,
Fort Lauderdale, for appellee Broward County.
Alyssa M. Reiter of Wicker Smith O’Hara McCoy & Ford, P.A.,
Fort Lauderdale, for appellee Rasier-DC, LLC.
DAMOORGIAN, J.
In this public records case, B&L Service, Inc. (“Yellow Cab”) appeals the
order denying its motion for attorney’s fees under section 119.12, Florida
Statutes (2016). For the reasons discussed below, we affirm.
Most of the relevant background facts are set forth in Rasier-DC, LLC v.
B&L Service, Inc. (Rasier I),
237 So. 3d 374, 375 (Fla. 4th DCA 2018):
Uber and Broward County entered into a license agreement
governing Uber’s services at the airport and Port Everglades.
Article 2.6.4 of the agreement addressed Uber’s monthly
self-reporting requirements. Article 9.4 required Broward
County to maintain the confidentiality of Uber’s trade secret
information and assert its exempt status in response to a
public records request.
Uber’s monthly reports contained both aggregate and
granular data. The aggregate data is the number of pickups
and drop-offs at the airport and seaport, “multiplied by the fee
in each of those zones.” The granular data is information on
every pickup and drop-off, including a time stamp, the
longitude and latitude, and the first three characters of the
driver’s license plate which identifies the individual. Uber
marked the reports as containing trade secret information,
exempt from the Public Records Act.
Yellow Cab made a public records request to Broward
County for: “All reports or documents reflecting pick-ups by
Rasier–DC, LLC or Uber at the [airport], and the sums of
money paid or owing to [the county] for those trips, beginning
in October, 2015 and through the present.” . . . The county
responded that any reports marked trade secret would not be
disclosed without Uber’s authorization, pursuant to the
license agreement, and produced a redacted set.
Yellow Cab then filed a complaint against Broward County
for violating Florida’s Public Records Act, seeking un-redacted
monthly reports on Uber’s pickups at the airport. Uber then
moved to intervene as the owner of the trade secret
information and real party in interest. The trial court granted
the motion to intervene.
(alterations in original) (emphasis in original removed).
Following an evidentiary hearing, the trial court entered a final order
wherein it found that all the redacted information in the reports was
protected trade secrets and exempt from disclosure under Florida’s Public
Records Act. The trial court also expressly found that Broward County
“did not violate the Public Records Act when it refused to disclose
unredacted monthly reports in response to a public records request.”
Yellow Cab thereafter moved for rehearing, arguing the trial court
overlooked that its public records request was limited to the amount of
money paid to Broward County and the number of pickups. Accordingly,
it sought rehearing for the limited purpose “of obtaining an order that
requires disclosure of only the amount paid, or due, to the County, based
upon the number of pick-ups.” The motion did not seek rehearing of the
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trial court’s express ruling in the final order that Broward County did not
violate the Public Records Act.
The trial court ultimately granted the motion for rehearing in part,
finding that “the aggregate number of pick-ups and the sum of money paid
by [Uber] to the County as a usage fee at the [airport] does not constitute
trade secret information such that it would be exempt from public
disclosure.” The court found the remaining redacted information in the
reports to constitute trade secrets. The rehearing order did not mention
or alter the ruling in the final order that Broward County complied with
the Public Records Act. To the contrary, the rehearing order specifically
states the final order is only “MODIFIED as set forth herein.”
In Rasier I, appellee Rasier-DC, LLC (“Uber” 1) appealed the trial court’s
decision. We affirmed, holding that “the total number of pickups and the
fees paid to Broward County do not meet the definition of trade secrets
under sections 688.002(4) or 812.081(1)(c), Florida Statutes (2016).”
Rasier
I, 237 So. 3d at 377. Importantly, Yellow Cab did not cross-appeal
the trial court’s express ruling in the final order that Broward County did
not violate the Public Records Act.
After we issued our mandate in Rasier I, the trial court addressed
Yellow Cab’s pending motion for attorney’s fees against Broward County
pursuant to section 119.12, Florida Statutes (2016). The trial court denied
the motion for two reasons. First, it found that by failing to cross-appeal
in Rasier I, Yellow Cab waived the issue of whether Broward County
unlawfully refused the records request. Second, relying on our decision in
State Attorney’s Office of Seventeenth Judicial Circuit v. Cable News
Network, Inc.,
254 So. 3d 461 (Fla. 4th DCA 2018), it found that Broward
County’s refusal to produce the unredacted reports could not be unlawful
because it was based on the “trade secret” exemption contained in section
815.045, Florida Statutes (2016). This appeal follows.
Section 119.12, Florida Statutes (2016), allows for an award of
attorney’s fees to a prevailing party who files a civil action against a public
agency to enforce Florida’s public records laws. By its terms, section
119.12 only allows for fees “if the court determines that [the] agency
unlawfully refused to permit a public record to be inspected or copied.”
Id.
A refusal is unlawful, in turn, “when a court determines that the reason
1 As we explained in Rasier I: “Rasier is a subsidiary of Uber Technologies, Inc.
It licenses technology from Uber Technologies, Inc., and then licenses it to Uber
drivers. While Uber Technologies, Inc., is not a party to the case, Rasier is
referred to as Uber for ease of understanding.” Rasier
I, 237 So. 3d at 375 n.1.
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proffered as a basis to deny a public records request is improper.” Office
of State Att’y for Thirteenth Judicial Circuit of Fla. v. Gonzalez,
953 So. 2d
759, 764 (Fla. 2d DCA 2007). In other words, a determination that a public
agency acted unlawfully for purposes of awarding attorney’s fees is
predicated on a finding by the trial court that the agency violated a
provision of the Public Records Act. See Bd. of Trs., Jacksonville Police &
Fire Pension Fund v. Lee,
189 So. 3d 120, 122 (Fla. 2016) (“[W]e hold that
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.”).
With these parameters in mind, Broward County and Uber jointly argue
that by failing to cross-appeal the trial court’s ruling that Broward County
did not violate the Public Records Act in Rasier I, Yellow Cab necessarily
waived the issue of whether Broward County unlawfully refused the public
records request. We agree.
“Generally, a cross-appeal must be filed to challenge an unfavorable
portion of a final judgment substantially favorable to the appellee.” Wiccan
Religious Coop. of Fla., Inc. v. Zingale,
898 So. 2d 134, 136 (Fla. 1st DCA
2005). If a party fails to cross-appeal an adverse ruling and the case is
remanded, the party is precluded from subsequently challenging that
adverse ruling unless the parties consent to the issue being heard. See
id.
The holding in Mootry v. Bethune-Cookman University, Inc. (Mootry II),
279 So. 3d 207 (Fla. 5th DCA 2019), is instructive. In that case, a
professor sued the university for breach of employment contract.
Id. at
208. One of the arguments the professor made in the first trial was that
the university failed to comply with the procedures in the faculty
handbook.
Id. at 212. The professor lost in the first trial but the appellate
court reversed for a new trial in Mootry v. Bethune-Cookman University,
Inc. (Mootry I),
186 So. 3d 15 (Fla. 5th DCA 2016). After the second trial
resulted in a verdict for the university, the professor appealed and the
court in Mootry II reversed and remanded for a new trial. Mootry
II, 279
So. 3d at 208. Of particular significance, the university cross-appealed in
Mootry II and attempted to challenge “the trial court’s determination, prior
to the first trial, that, by their conduct, the parties had made the faculty
handbook (or portions thereof) part of [the professor’s] employment
contract.”
Id. at 211–12. The Mootry II court refused to address the
university’s argument, holding that because the university “did not
challenge this decision by the trial court in its cross-appeal in Mootry I
. . . . it has waived its right to challenge that decision in this subsequent
appeal.”
Id. at 212; see also Philip Morris USA, Inc. v. Naugle,
182 So. 3d
4
885, 886 (Fla. 4th DCA 2016) (holding that by failing to cross-appeal the
comparative fault issue in the first appeal, the tobacco company waived
the issue in the second appeal).
Here, similar to Mootry, the trial court made an express ruling in the
final order that Broward County did not violate the Public Records Act in
initially refusing to produce the unredacted reports. This ruling, which
was final in nature and unaltered by the rehearing order, was undoubtedly
unfavorable to Yellow Cab. By failing to cross-appeal that unfavorable
portion of the final order, Yellow Cab has waived its right to challenge that
ruling in this subsequent appeal. As an award of attorney’s fees under
section 119.12 is predicated on a finding that the public agency violated a
provision of the Public Records Act, Yellow Cab’s argument that it is
entitled to attorney’s fees under the statute must necessarily fail. Stated
differently, there can be no unlawful refusal in this case in light of the trial
court’s unchallenged ruling that Broward County did not violate a
provision of the Public Records Act.
Affirmed.
FORST and ARTAU, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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