JAMES T. NADELL v. APACHULA B. HURSEY

Third District Court of Appeal
State of Florida
Opinion filed June 21, 2023.
Not final until disposition of timely filed motion for rehearing.
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No. 3D23-315
Lower Tribunal No. 20-149-M
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James T. Nadell,
Petitioner,
vs.
Apachula B. Hursey,
Respondent.
A Case of Original Jurisdiction—Prohibition.
Ronald I. Strauss, Esq., P.A., and Ronald I. Strauss, for petitioner.
Philip D. Parrish, P.A., and Philip D. Parrish, for respondent.
Before EMAS, SCALES and BOKOR, JJ.
SCALES, J.
Petitioner James T. Nadell, the defendant below, seeks a writ of
prohibition to quash the trial court’s January 27, 2023 interlocutory order
denying Nadell’s motion to dismiss the civil battery complaint filed by the
plaintiff below, respondent Apachula Hursey. Claiming that he is entitled to
statutory immunity from this civil action under Florida’s Stand Your Ground
Law (“SYG”),1 Nadell argues that the trial court’s factual findings contained
in the challenged order, entered after an evidentiary hearing on Nadell’s SYG
motion, are not supported by competent, substantial evidence. While we
read existing precedent as allowing us to reach the merits of Nadell’s
petition, we do so with reluctance because we question whether prohibition
is an available remedy to a civil defendant who seeks to challenge a nonfinal
order denying SYG immunity. Thus, we certify this threshold procedural
question to the Florida Supreme Court as one of great public importance and
refer the issue to the Florida Bar’s Appellate Rules Committee. On the
merits, we deny Nadell’s petition because competent, substantial evidence
supports the trial court’s determination that Nadell is not entitled to SYG
immunity.
I. RELEVANT FACTS AND PROCEDURAL BACKGROUND
1
Section 776.032(1) of the Florida Statutes (2018) provides, in relevant part,
that “[a] person who uses or threatens to use force as permitted in s.
776.012, s. 776.013, or s. 776.031 is justified in such conduct and is immune
from . . . civil action for the use or threatened use of such force by the person
. . . against whom the force was used or threatened, unless the person
against whom force was used or threatened is a law enforcement officer[.]”
2
Hursey’s amended complaint against Nadell seeks damages for
injuries Hursey sustained as a result of an alleged battery committed by
Nadell on October 16, 2018, on Nadell’s boat in Key West, Florida. In his
responsive pleading, Nadell alleges, as an affirmative defense, that he is
immune from civil liability under SYG. On April 14, 2022, Nadell filed his
Motion for Order Granting Statutory Civil Immunity Pursuant to F.S. 776.032
(“SYG Motion”) in which Nadell seeks dismissal of Hursey’s amended
complaint. Nadell’s SYG Motion asserts that Hursey attacked Nadell, and
that Nadell used “only necessary force to separate [Hursey] from [Nadell].”
Following a December 20, 2022 evidentiary hearing thereon, the trial court
entered the January 27, 2023 challenged order denying Nadell’s SYG
Motion. The challenged order concludes that Nadell failed to meet his burden
of establishing, by a preponderance of evidence, that he is entitled to
statutory civil immunity.
Nadell then filed the instant prohibition petition in this Court. Nadell’s
principal argument here is that the trial court’s order is not supported by
competent, substantial evidence. We ordered the parties to submit
supplemental briefing on whether, in light of the Florida Supreme Court’s
recent decision in Mintz Truppman, P.A. v. Cozen O’Connor, PLC, 346 So.
3
3d 577 (Fla. 2022), 2 prohibition is an available remedy to challenge a trial
court’s nonfinal order in a civil case denying SYG immunity. After receiving
the parties’ supplemental briefing, we deferred weighing in on this threshold
procedural question until the parties fully briefed the merits of the instant
petition.
II. ANALYSIS
A. Whether Prohibition Lies and the Certified Question of Great Public
Importance
At the outset, we are faced with a difficult, procedural question:
whether the remedy of prohibition lies to review an interlocutory order in a
civil case denying, after an evidentiary hearing, a statutory immunity claim
brought under SYG. 3 The challenged order is not contained in Florida Rule
2
In Mintz Truppman, the Florida Supreme Court quashed an opinion from
this Court granting a prohibition petition to a civil defendant being sued in the
Miami-Dade County circuit court for a claim that already had received a final
adjudication in federal court. The Mintz Truppman court held that the remedy
of prohibition is not available to a civil defendant wishing to challenge a trial
court order denying the defendant’s motion to dismiss based on collateral
estoppel. 345 So. 3d at 581.
3
In his supplemental briefs, Nadell requests that, should we determine
prohibition does not lie as a remedy, we treat his prohibition petition as a
certiorari petition. Indeed, if Nadell’s petition challenged some procedural
aspect of the trial court’s disposition of his SYG Motion, then certiorari might
be an appropriate remedy. See Edwards v. State, 351 So. 3d 1142, 1146-47
(Fla. 1st DCA 2022); Corbett v. State, 348 So. 3d 645, 647-48 (Fla. 5th DCA
2022); see also Penalver v. State, 338 So. 3d 990, 990 (Fla. 3d DCA 2022)
(granting certiorari and quashing an order denying the petitioner’s SYG
4
of Appellate Procedure 9.130’s schedule of appealable nonfinal orders. As
mentioned above, our Supreme Court has recently reinforced the very
limited circumstances in which the remedy of prohibition is available:
Prohibition is an extraordinary writ, extremely narrow in
scope, by which a superior court may prevent an inferior court
from exceeding its jurisdiction. English v. McCrary, 348 So. 2d
293, 296 (Fla. 1977).
We have consistently said that the purpose of the writ is to
prevent a court’s action beyond the scope of its jurisdiction, not
to correct an erroneous exercise of jurisdiction. See McCrary,
348 So. 2d at 296-97 (“It is preventive and not corrective in that
it commands the one to whom it is directed not to do the thing
which the supervisory court is informed the lower tribunal is about
to do. Its purpose is to prevent the doing of something, not to
compel the undoing of something already done.”).
. . . [W]ere we to permit litigants to seek prohibition in every
case in which a trial judge denies a motion to dismiss based on
collateral estoppel, res judicata, or any other affirmative defense,
the writ could be used to end-run our rules on appeals generally
and interlocutory appeals in particular. . . .
In the cases where we have found a writ of prohibition to
be an appropriate remedy, it has not been deployed to reverse a
trial court’s order on the merits of a case on the basis of an
affirmative defense. We have found it properly issued where a
motion in a criminal case because the trial court erred in determining that the
petitioner’s SYG motion must be sworn and rely on record evidence);
Casanova v. State, 335 So. 3d 1231, 1232 (Fla. 3d DCA 2021) (same).
Because Nadell’s petition, though, raises no procedural issue regarding how
the trial court conducted the evidentiary hearing on his SYG Motion, and
contests only the trial court’s merits determination in the challenged order,
we decline Nadell’s invitation to treat the instant petition as a certiorari
petition.
5
court has proposed to act in excess of its subject matter
jurisdiction.
Mintz Truppman, 346 So. 3d at 580-81 (citations omitted) (footnote omitted).
We are not alone in struggling with the issue. See, e.g., Snow v. State,
352 So. 3d 529, 532-534 (Fla. 1st DCA 2022) (questioning the availability of
the prohibition remedy in the SYG immunity setting, especially with regard to
the fact that, unlike other interlocutory remedies, there is no time limit for
filing a prohibition petition); Edwards, 351 So. 3d at 1146, n.2 (noting that
nonfinal orders denying SYG immunity were not added when the Florida
Supreme Court expanded rule 9.130’s list of appealable nonfinal orders to
include nonfinal orders denying certain types of immunity claims, and
questioning the appropriateness of prohibition as a remedy).
Notwithstanding the limitations on the remedy of prohibition, our sister courts
have recognized prohibition as the appropriate remedy for challenging the
trial court’s denial of a defendant’s assertion of SYG immunity:
If the defendant asserts that on the merits he or she is entitled to
immunity, is challenging the legal determinations and factual
findings of immunity or lack of immunity, and the relief to be
afforded is prohibition against further prosecution, then a petition
for writ of prohibition is appropriate to review the claim.
Corbett, 348 So. 3d at 648; Edwards, 351 So. 3d at 1146 (“When raising a
substantive challenge to a trial court’s ruling on a self-defense immunity
claim, a defendant may seek relief by petitioning for a writ of prohibition.”).
6
Moreover, as recently as 2021, the Florida Supreme Court seems to
have suggested that prohibition will lie as a remedy:
[A] defendant who avails him or herself to a pretrial immunity
hearing and who believes legal error was committed at the
pretrial immunity hearing may still seek relief by filing a petition
for a writ of prohibition before invoking his or her right to a trial.
Boston v. State, 326 So. 3d 673, 677 (Fla. 2021) (footnote omitted)
(determining that a criminal defendant, whose pretrial SYG immunity hearing
was conducted using an incorrect burden of proof and who was later
convicted in a jury trial, was not entitled to have his conviction vacated
because the jury – employing a burden of proof more favorable to the
defendant – rejected the defendant’s self-defense claim).
Although we find it difficult in this case to reconcile the availability of
prohibition as a remedy with the dictates of Mintz Truppman, existing
precedent compels us to adjudicate the merits of Nadell’s prohibition
petition. 4 Nevertheless, given (i) the lack of precedent in civil cases on this
issue, (ii) the Florida Supreme Court’s pronouncements in Mintz Truppman
4
We note that all of the SYG immunity cases cited herein are criminal cases.
In Professional Roofing & Sales, Inc. v. Flemmings, 138 So. 3d 524 (Fla. 3d
DCA 2014), though, this Court treated the civil defendants’ petition for review
of an order summarily denying their motion to dismiss a civil action under
SYG as a petition for writ of prohibition. In reaching its decision, the
Flemmings court concluded that the appropriate procedure for determining
a civil immunity claim under section 776.032 is the same as that employed
by the courts in the criminal context. Id. at 530.
7
regarding the limited availability of the prohibition remedy, (iii) both our and
our sister court’s questioning the availability of the prohibition remedy, and
(iv) the likelihood that this issue will recur, we certify to the Florida Supreme
Court the following question as one of great public importance:
Is prohibition the appropriate remedy for a civil defendant to
challenge a nonfinal order denying the defendant’s motion for
statutory immunity under Florida’s Stand Your Ground Law?
We also refer to the Florida Bar’s Appellate Rules Committee the issue of
whether rule 9.130’s list of appealable nonfinal orders should be amended
to include appeals from nonfinal orders denying a civil defendant’s motion
for statutory immunity under SYG.
B. The Merits of Nadell’s Prohibition Petition
This Court applies a mixed standard of review to the trial court’s order
denying Nadell’s SYG Motion. To wit, we review the trial court’s factual
findings for competent, substantial evidence, and we review de novo the trial
court’s legal determination with respect to those factual findings. See State
v. Quevedo, 357 So. 3d 1249, 1252 (Fla. 3d DCA 2023). Importantly, Nadell
bore the burden below of proving, by a preponderance of the evidence, that
he is entitled to civil immunity under SYG. See Kumar v. Patel, 227 So. 3d
557, 559 (Fla. 2017).
8
At the evidentiary hearing on Nadell’s SYG Motion, the trial court heard
testimony from Nadell, Hursey, and two eyewitnesses who were on Nadell’s
boat the night of the altercation. Nadell and the two eyewitnesses testified
that Hursey was the aggressor and that Nadell acted only in self-defense.
Whereas, Hursey testified that Nadell was the aggressor:
[NADELL’S ATTORNEY]: Okay. Tell me how this altercation
occurred.
[HURSEY]: Well, it all started with me getting on the telephone. .
. . And I was sitting next to [Nadell] and [Nadell] was listening to
the conversation and he said let – what is this all about? And I
said I was trying to get them a date and he – I was blindsided
and he took my arm and tried to take my phone away while
yelling into the phone stay away from her, she’s F’ing mine. And
he wouldn’t let go of my phone and my arm was being twisted.
And from there, I remember my hair being pulled.
In the challenged order, the trial court determined that, based on the
evidence presented below, it “[could not] reach the conclusion that either
Hursey or Nadell became the ‘aggressor’ that evening” and, therefore, Nadell
had failed to prove, by a preponderance of the evidence, “that Nadell was
defending himself from being battered by Hursey.”
Nadell’s petition argues that because Nadell and the two
eyewitnesses testified that Hursey had instigated the physical encounter
between Nadell and Hursey, the trial court was required to find, as a factual
matter, that Hursey was the aggressor and that Nadell is therefore immune
9
from Hursey’s lawsuit. Nadell’s argument, though, misapprehends this
Court’s review of a trial court’s factual findings.
In conducting our competent, substantial evidence review, “[t]he trial
court’s factual findings are presumed correct” and this Court “must interpret
the evidence and reasonable inferences and deductions derived therefrom
in a manner most favorable to sustaining the trial court’s ruling.” Spires v.
State, 180 So. 3d 1175, 1177 (Fla. 3d DCA 2015) (quoting Viera v. State,
163 So. 3d 602, 604 (Fla. 3d DCA 2015)). We do not reweigh the evidence.
See Snow, 352 So. 3d at 536. Nor does it matter that Nadell’s version of
events is supported by evidence that conflicts with Hursey’s version of
events. Id. at 538. “It only matters that the version the trial court believed is
supported by competent, substantial evidence.” Id. Thus, while the bulk of
the testimonial evidence presented at the hearing may support Nadell’s claim
that Nadell was merely defending himself against Hursey’s attack, Hursey’s
testimony to the contrary constitutes competent, substantial evidence that
supports the trial court’s legal determination that Nadell is not entitled to SYG
immunity. Id. 5
5
We note, as did the trial court, that (i) neither of the eyewitnesses testified
that they had seen Hursey strike Nadell, and (ii) both eyewitnesses candidly
admitted that, on the night of the altercation, they told the police that they
had not seen any part of the altercation between Nadell and Hursey. Also,
over Nadell’s objection, the trial court received evidence that Hursey’s
10
Ultimately, the trial court weighed the evidence and determined that
Nadell had not met his burden of proof. Based on our standard of review, we
find no error that would warrant granting Nadell’s petition, and therefore we
deny the petition.
Petition denied; question certified; issue referred to Florida Bar’s
Appellate Rules Committee.
testimony was consistent with the version of events Hursey relayed to police
the night of the incident.
11