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

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.

August 16, 2018

ON MOTION FOR REHEARING AND MOTION FOR CERTIFICATION

ROWE, J.

We deny Appellees’ motion for certification, but grant in part

Appellees’ motion for rehearing, withdraw our opinion dated

April 10, 2018, and substitute the following opinion in its place.

***

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

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).

2

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 including trespasses, 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

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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 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

4

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

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 was a discretionary function of the FWC.

Third, the trial court erred in entering the injunction because the

5

injunction violated the separation of powers doctrine 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 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 are not 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

6

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

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 asserting that 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

several reasons.

First, the FWC did in fact address the legal sufficiency of

both the takings and nuisance claims in its Initial Brief and

Reply Brief. In the Summary of the Argument section of its

Initial Brief, the FWC stated:

7

The circuit court also erred when it found as a matter of

law that the Plaintiffs’ claims were not barred by

sovereign immunity. The state of Florida has not

waived sovereign immunity for its functions which are

tantamount to legislative acts. A plaintiff cannot

pursue a lawsuit against FWC for acts that are basic

judgmental or discretionary governmental functions.

FWC (like any public body or governmental entity) is

not liable to any individual based on its enactment of or

failure to enact laws or regulations or by its issuance of

or refusal to issue licenses, permits, variances or

directions. In addition, there is no duty of FWC to

prevent the misconduct of third persons.

FWC’s decision to enact rules and regulations related to

hunting in Blackwater WMA and its decision to issue

permits for deer dog hunting in Blackwater WMA are

decisions that fall within FWC’s discretionary

governmental functions. The facts of this lawsuit as

alleged by the Plaintiffs are not sufficient to maintain a

cause of action against FWC for nuisance or takings

claims.

(Emphasis added). When arguing for the reversal of the trial

court’s imposition of an injunction, the FWC presented the

following argument concerning the legal sufficiency of Appellees’

claims, including the takings claims:

The circuit court did not make any of the required

findings and as to the likelihood of success on the merits

merely found as follows:

Whether, and the extent to which the 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.

The circuit court’s order granting the Plaintiffs’ motion

for temporary injunctive relief should be reversed also

on the grounds that it does not contain the findings

8

required by Florida law and therefore does not comply

with Florida law.

(Emphasis added). The FWC raised the argument again in the

section arguing for reversal of the trial court’s denial of its motion

for summary judgment:

The facts alleged as alleged by the Plaintiffs in the case

are not sufficient to state a cause of action against FWC

for which sovereign immunity has been waived.

The Initial Brief concluded with the FWC explicitly requesting

the relief granted in this opinion:

FWC also respectfully requests that this Court find that

the circuit court erred when it declined to grant

summary judgment in favor of FWC on the Plaintiffs’

claims and remand the case for further proceedings

consistent with this Court’s ruling and what other and

further relief this Court deems just and proper.

Contrary to the assertions made by the dissent, the majority is

not addressing an issue that was never raised on appeal.

Second, 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. Third, 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).

9

To state a legally sufficient claim for takings, Appellees were

required to allege that (1) the FWC required them to submit to a

temporary or 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. 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 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). A taking may also occur when the government has denied

“a landowner all use of his property” on a temporary basis. First

English Evangelical Lutheran Church of Glendale v. Los Angeles

Cty., Cal., 482 U.S. 304, 318 (1987). 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. 636 So. 2d 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 either a temporary or 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.

10

Neither do the Appellees allege that the FWC has deprived

them of all economically beneficial use of their property. In order

to constitute a taking, the government must deprive the property

owner of substantially all use of his property. Tampa-

Hillsborough Cty. Expressway Auth. v. A.G.W.S. Corp., 640 So. 2d

54, 58 (Fla. 1994) (“A taking occurs where regulation denies

substantially all economically beneficial or productive use of

land.”) Here, 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 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

11

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 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

12

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 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

13

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 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

14

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 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

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.”

15

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

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.

_____________________________

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 any issue regarding Appellees’ takings claims is not properly

before us, sovereign immunity does not apply to Appellees’

nuisance claims against Appellant, and the temporary injunction

was properly entered.

16

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 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

17

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

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

18

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. The trial court found

that Appellees set forth “proper claims for injunctive relief and

claims for per se and non-per se taking[s] claims under the

circumstances present here.”

On the issue of sovereign immunity, the trial court

determined that Appellant was not immune from liability for

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.”

19

ANALYSIS

Summary Judgment – Inverse Condemnation

With respect to Appellees’ takings claims, the majority

reverses based upon its determination that Appellees failed to

state legally sufficient claims. However, not only is the legal

sufficiency of Appellees’ takings claims not appealable in this

non-final appeal, but Appellant, by not making any argument on

the issue, abandoned any challenge regarding Appellees’ takings

claims on appeal.

This is an appeal of a non-final order pursuant to Florida

Rule of Appellate Procedure 9.130. Rule 9.130(a)(3)(B)

authorizes appeals of non-final orders that grant an injunction

and Rule 9.130 (a)(3)(C)(xi) authorizes appeals of non-final orders

that determine as a matter of law that a party is not entitled to

sovereign immunity. The above-referenced appellate rules do not

authorize an appeal from a non-final order denying a motion

based on the sufficiency of a takings claim. In fact, had the non-

final order on appeal simply determined that Appellees had set

forth a sufficient takings claim, the order would not have been an

appealable non-final order. As our Court in Saidin v. Korecki,

202 So. 3d 468, 470 (Fla. 1st DCA 2016), set forth:

Additionally, our jurisdiction to review non-final orders

granting injunctive relief under rule 9.130(a)(3)(B) does

not extend to afford review of certain other matters the

non-final order addresses. Stanberry v. Escambia Cnty.,

813 So.2d 278, 279 (Fla. 1st DCA 2002); see also

Hancock v. Suwannee Cnty. Sch. Bd., 149 So.3d 1188,

1190 (Fla. 1st DCA 2014). Accordingly, Appellant's

challenges to the non-injunctive portions of the order are

dismissed as non-appealable, non-final rulings. See

Amendments to Florida Rules of Appellate Procedure,

780 So.2d 834, 863 (Fla.2000) (repealing rule

9.130(a)(3)(C)(iv) which allowed review of non-final

orders determining “the issue of liability in favor of a

party seeking affirmative relief.”). This dismissal is

without prejudice to Appellant's right to challenge

future appealable orders entered in this case.

20

As such, the only appealable issues before this Court in this non-

final appeal are whether Appellant is entitled to sovereign

immunity and whether the trial court properly granted injunctive

relief.

While the majority relies upon Cutler v. City of Jacksonville

Beach, 489 So. 2d 126 (Fla. 1st DCA 1986), in support of its

statement that the trial court could only have ruled as a matter

of law that sovereign immunity did not bar the takings claims if

Appellees pled the required elements, Cutler involved a plenary

appeal by the appellant of the trial court’s final order of dismissal

with prejudice of the appellant’s amended complaint. In Cutler,

all the issues framed by the amended complaint, including

whether the amended complaint stated a cause of action and the

trial court’s determination of the City’s sovereign immunity, were

subject to appellate review. Here, in contrast, Appellant is

appealing a non-final summary judgment order pursuant to Rule

9.130, which limits the scope of Appellant’s appeal to the trial

court’s determination as a matter of law that Appellant is not

entitled to sovereign immunity and the temporary injunction. In

Cutler, this Court noted that the appellant alleged in part that

the appellee was legally responsible for acts of negligence on the

part of the lifeguards or members of the beach patrol at the time

of the appellant’s daughter’s drowning. Id. at 128. We set forth

in part, “Such allegations concern acts at an operational level,

which, if otherwise legally sufficient, are not barred by sovereign

immunity . . . .” Id. We found that the appellant’s allegation

failed to state a cause of action against the appellee and, thus,

found no error in the trial court dismissing the appellant’s

negligence count against the appellee. However, in reversing and

remanding in part, we held that dismissal of the claim should

have been without prejudice. Here, as stated, we are not faced

with an appeal of a final order dismissing Appellees’ claims.

Instead, this non-final appeal addresses a summary judgment

order that primarily determined that Appellees’ claims were not

barred by sovereign immunity as a matter of law.

Furthermore, even if we did have jurisdiction to address the

legal sufficiency of Appellees’ takings claims, Appellant does not

argue on appeal that the trial court erred in determining that the

21

takings claims were legally sufficient. In fact, Appellant has not

expressly challenged in its Initial Brief the trial court’s

determination that sovereign immunity does not bar Appellees’

takings claims. Instead, in its Initial Brief, Appellant 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.”

Appellant’s arguments regarding sovereign immunity pertain

only to whether the doctrine bars Appellees’ nuisance claims.

Moreover, none of the cases cited by Appellant on appeal were

cited in support of an argument that the trial court erred in

determining that sovereign immunity did not bar Appellees’

takings claims or that Appellees’ takings claims were legally

sufficient.

As this Court explained in Anheuser-Busch Companies 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.”

The fact that Appellant did not challenge the trial court’s

determinations that Appellees’ takings claims were not barred by

sovereign immunity or that Appellees sufficiently pled their

takings claims means that it abandoned those issues. 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). In Parker-Cyrus v. Justice Administrative

Commission, 160 So. 3d 926, 927 (Fla. 1st DCA 2015), this Court

held, in an opinion authored by Judge Rowe, that the petitioner

abandoned a challenge to the trial court’s factual findings by

failing to raise any arguments attacking the order until his reply.

In doing so, this Court noted that a “party abandons any issue

that was not raised in the initial petition.” Id. at 928; see also

Coolen v. State, 696 So. 2d 738, 744 n.2 (Fla. 1997) (holding that

the appellant’s failure to fully brief and argue certain points on

appeal constituted a waiver of the claims); Duest v. Dugger, 555

So. 2d 849, 852 (Fla. 1990) (“The purpose of an appellate brief is

to present arguments in support of the points on appeal. Merely

making reference to arguments below without further elucidation

22

does not suffice to preserve issues, and these claims are deemed

to have been waived.”).

Notwithstanding the foregoing, Appellees will be prevented

from pursuing their takings claims against Appellant on a basis

not argued by the parties on appeal. In fact, the first time the

legal sufficiency of Appellees’ takings claims was mentioned on

appeal was in the majority opinion. Indeed, portions of the

majority opinion closely resemble Appellant’s summary judgment

argument concerning the legal sufficiency of the takings claims

that was made below. The majority’s reliance upon various

conclusory statements made in Appellant’s Initial Brief,

including statements made in the context of the entirely separate

issue of the temporary injunction and statements made in the

Summary of the Argument section, in no way supports its

conclusion that the legal sufficiency of Appellees’ takings claims

is an issue that is properly before this Court. See Caldwell v. Fla.

Dep’t of Elder Affairs, 121 So. 3d 1062, 1064 (Fla. 1st DCA 2013)

(holding that two perfunctory statements made by the appellant

in her Initial Brief were insufficient to present an argument for

appellate review). Instead, a review of the Initial Brief supports

my view that the legal sufficiency issue is not properly before us

on appeal. Absolutely nothing in Appellant’s Initial Brief

resembles what the majority has addressed in its opinion with

respect to this issue. It is not an appellate court’s function to

take a conclusory statement made by a party and formulate an

argument in support of that statement and in favor of the party.

If Appellant wished to challenge on appeal the trial court’s

findings that Appellees’ takings allegations were legally sufficient

or that sovereign immunity does not bar the takings claims, it

had a duty to set forth its arguments in favor of such a challenge.

There is no question in this case that no such challenge was made

as to these issues. Moreover, while the majority cites Plancher v.

UCF Athletics Association, Inc. v. UCF Athletics Association, Inc.,

175 So. 3d 724, 729 n.3 (Fla. 2015), for the proposition that the

issue of sovereign immunity is a legal issue subject to de novo

review, our standard of review does not excuse the requirement

that a party raise an issue on appeal before this Court may

address it. For these reasons, the majority’s reversal as to the

takings claims is wholly inappropriate.

23

Alternatively, if we had jurisdiction to address the legal

sufficiency of Appellees’ takings claims and if Appellant had

raised the issue on appeal, affirmance as to the issue would still

be proper. The majority cites Teitelbaum v. South Florida Water

Management District, 176 So. 3d 998 (Fla. 3d DCA 2015), and

Certain Interested Underwriters at Lloyd’s London Subscribing to

Certificate No. TPCLDP217477 v. City of St. Petersburg, 864 So.

2d 1145 (Fla. 2d DCA 2003), for the proposition that Appellees

were required to allege: (1) that Appellant required them to

submit to a permanent or temporary physical occupation of their

land or (2) that Appellant enacted a regulation or imposed a

condition that completely deprived them of all economically

beneficial use of their land. The Third District in Teitelbaum

cited Lingle v. Chevron U.S.A., Inc., 544 U.S. 528 (2005), for the

proposition that “the United States Supreme Court summarized

the existing jurisprudence on this issue by holding that a per se

taking occurs ‘where government requires an owner to suffer a

permanent physical invasion of her property,’ or where the

government passes and applies ‘regulations [that] completely

deprive an owner of all economically beneficial us[e]’ of her

property.” 176 So. 3d at 1003. The Second District in City of St.

Petersburg cited Florida Game and Fresh Water Fish Commission

v. Flotilla, Inc., 636 So. 2d 761, 761 (Fla. 2d DCA 1994), for the

proposition that “[t]he required ‘physical occupation’ arises when

the government ‘permanently deprives the owner of his ‘bundle’

of private property rights . . . .’” 864 So. 2d at 1148. In Flotilla,

the Second District explained that there was no physical taking

in the case before it and that it was more truly characterized by

the fact-intensive inquiry the law associates with regulatory

takings rather than physical takings. 636 So. 2d at 764. The

Second District, citing Loretto v. Teleprompter Manhattan CATV

Corp., 458 U.S. 419 (1982), noted that the government physically

occupies property when it permanently deprives the owner of his

bundle of private property rights. Id.

In Arkansas Game and Fish Commission v. United States,

568 U.S. 23, 26 (2012), the question presented was whether a

taking may occur, within the meaning of the Takings Clause,

when government-induced flood invasions, although repetitive,

are temporary. In holding that such a temporary taking can

occur, the Supreme Court set forth, “Ordinarily, this Court’s

24

decisions confirm, if government action would qualify as a taking

when permanently continued, temporary actions of the same

character may also qualify as a taking.” Id. The Court, citing

Loretto, later set forth, “True, we have drawn some bright lines,

notably, the rule that a permanent physical occupation of

property authorized by government is a taking. . . . So, too, is a

regulation that permanently requires a property owner to

sacrifice all economically beneficial uses of his or her land.” Id. at

31-32. The Court then stated, “But aside from the cases attended

by rules of this order, most takings claims turn on situation-

specific factual inquiries. . . . With this in mind, we turn to the

question presented here–whether temporary flooding can ever

give rise to a takings claim.” Id. According to the Court, its

decisions “confirm that takings temporary in duration can be

compensable.” Id. The Court explained that “[a] temporary

takings claim could be maintained as well when government

action occurring outside the property gave rise to ‘a direct and

immediate interference with the enjoyment and use of the land.’”

Id. at 33 (citing United States v. Causby, 328 U.S. 256 (1946)).

The Court later set forth, “Because government-induced flooding

can constitute a taking of property, and because a taking need

not be permanent to be compensable, our precedent indicates

that government-induced flooding of limited duration may be

compensable.” Id. at 34; see also Rubano v. Dep’t of Transp., 656

So. 2d 1264, 1266 (Fla. 1995) (“A taking may occur in a wide

variety of circumstances and may be either temporary or

permanent.”).

Based upon the foregoing, the majority’s conclusion that

Appellees’ takings claims are legally insufficient because

Appellees are unable to allege that their land has been physically

occupied is erroneous. As the majority concedes, a temporary

taking is a cognizable claim, and there is no question that

government-sanctioned actions occurring outside Appellees’

property have given rise to a “‘direct and immediate interference

with the enjoyment and use of the land.’” Ark. Game & Fish

Comm’n, 568 U.S. at 33 (citation omitted). Moreover, while the

majority is correct that the Florida Supreme Court in Tampa-

Hillsborough County Expressway Authority v. A.G.W.S. Corp.,

640 So. 2d 54, 58 (Fla. 1994), set forth that a “taking occurs

where regulation denies substantially all economically beneficial

25

or productive use of land,” Appellees in this case did not allege

that the takings were based upon a governmental regulation.

Instead, they alleged per se takings claims and the physical

occupation of their property. ∗ It is important to note as well that

although the majority characterizes the trespasses upon

Appellees’ property as sporadic, transitory, and fleeting to

support its desired disposition in this case, the trial court found

that the “credible testimony clearly and convincingly established

that during the 12.1% of the year that comprises the FWC-

approved deer dog hunting days, the plaintiffs’ right to the quiet

enjoyment of their property has been invaded and interfered with

. . . .” For these reasons, affirmance would be warranted even if

the legal sufficiency of Appellees’ takings claims were properly

before us.

Affirmance would also be in order if Appellant had

challenged on appeal the trial court’s determination that

Appellees’ takings claims were not barred by sovereign

immunity. In addressing the merits of the issue, 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

∗

Although Appellees alleged a physical taking, it has also

been held that the government “may take private property not

only by physical occupancy, but also by imposing such burdens

upon the use of property as to deprive the owner of the enjoyment

of the land.” See Argent v. United States, 124 F.3d 1277, 1283

(Fed. Cir. 1997).

26

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 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.”). For the foregoing reasons, reversal of the

summary judgment as to Appellees’ takings claims is improper.

Summary Judgment – Nuisance

With regard 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.”).

27

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

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

28

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

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

29

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 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’

30

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 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

31

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

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

32

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 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

33

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

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.

34

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 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 & Shipman, P.A., Tallahassee;

Tracey Hartman, Tallahassee; and John P. Joy and Jose E.

Pagan of Walton Lantaff Schroeder & Carson LLP, Fort

Lauderdale, for Appellant.

David A. Theriaque, S. Brent Spain, and Terrell K. Arline of

Theriaque & Spain, Tallahassee, for Appellees.

_____________________________

35

ORDER ON MOTION FOR REHEARING EN BANC

A judge of this Court requested that this cause be reheard en

banc in accordance with Florida Rule of Appellate Procedure

9.331(d). All judges in regular active service have voted on the

request. Less than a majority of those judges voted in favor of

rehearing en banc. Accordingly, the request for rehearing en

banc is denied.

B.L. THOMAS, C.J., and WETHERELL, ROWE, RAY, OSTERHAUS,

KELSEY, WINOKUR, JAY, and WINSOR, JJ., concur.

WOLF and BILBREY, JJ., dissent.

MAKAR, J., dissents in an opinion in which LEWIS, J., joins.

ROBERTS and M.K. THOMAS, JJ., recused.

_____________________________

MAKAR, J., dissenting from the denial of rehearing en banc.

This case—which pits homeowners’ property rights against

the regulatory powers of the State—involves the scope of judicial

review when an appellant fails to raise and argue a legal claim as

a basis for reversal on appeal. The Florida Fish and Wildlife

Conservation Commission limited its interlocutory appeal to only

a nuisance theory, its briefs neither raising nor arguing a takings

theory for reversal. May the appellate panel nonetheless resolve

and dismiss the entire case in favor of the Commission on a basis

neither raised nor briefed nor argued by any party on appeal? If

so, may it do so without notice and supplemental briefing? These

questions are worthy of en banc review, and we ought to have

addressed them directly rather than passively accepting the

panel majority’s expansion of judicial power and, as a result,

government regulatory powers to take private property.

Ordinarily, the failure to raise an issue on appeal is deemed

a waiver unless an exception applies such as the correction of

36

fundamental error. See City of Miami v. Steckloff, 111 So. 2d 446,

447 (Fla. 1959) (“An assigned error will be deemed to have been

abandoned when it is completely omitted from the briefs.”); see

generally Philip J. Padovano, Waiver, 2 Fla. Prac., App. Practice

§ 8:10 (2017 ed.) (“A point that was raised before the trial court

but not addressed in the brief or petition filed in the appellate

court cannot be used as a ground for reversal. Failure to pursue

the argument on appeal or review is a waiver of the point.”); id.

§§ 8:8, 27:3 (discussing fundamental error in civil and criminal

cases, respectively); see also Tracy S. Carlin, Unpreserved Errors

Are All the Same, Right? Not Exactly, 92 FLA. B.J. 35, 35 (March

2018) (“In general, the fundamental error doctrine is the same in

both criminal and civil cases under Florida law, but courts are

apparently more inclined to find fundamental error in criminal

cases—where an individual’s liberty is at stake—than they are in

civil cases.”).

From time to time, appellate courts broaden their scope of

review beyond the issues raised, reflecting tension between two

judicial camps: one applying waiver strictly, the other less so (the

former generally focuses on the process, the latter generally

focuses on the substantive issues). The protocols and parameters

for raising new issues is somewhat ill-defined.

If a court raises new issues not presented by an

appellant, the practice can run counter to the

fundamental principle that an issue is waived if not

raised on appeal. Differing views exist, though the

following are general guidelines:

Generally, supplemental briefs may be filed

pursuant to the provisions of the relevant

appellate rules or by the consent of the court,

subject to the restriction that an issue or claim

may not be asserted for the first time in a

supplemental brief. However, when the claim

implicates fundamental constitutional rights,

the court may consider a claim that was not

included in the original brief and is raised in a

37

supplemental brief. Courts may require that

supplemental briefs be filed for issues not

raised by the parties or when there remains

confusion or doubt concerning an issue.

Whether courts allow supplemental briefs to be

filed depends in part on the timing of the

request in relation to the status of the appeal.

5 AM. JUR. 2D Appellate Review § 519 (2013) (footnotes

omitted). In the context of Anders briefs, the Florida

Supreme Court has broadly said that “an appellate court

can order supplemental briefs in any case before it,

regardless of the type of brief originally filed.” In re

Order of First Dist. Ct. of Appeal Regarding Br. Filed in

Forrester v. State, 556 So. 2d 1114, 1117 (Fla. 1990)

(“We approve the district court’s requiring supplemental

briefs as being within the inherent powers of the

court.”). In a non-Anders context, Judge Cope, writing

for himself, noted that it “appears that an appellate

court has the power to order supplemental briefing and

to consider the briefs when filed. This amounts to an

exception to the waiver rule” that would otherwise

foreclose review of new issues raised by the court absent

fundamental error. R & B Holding Co., Inc. v.

Christopher Adver. Grp., Inc., 994 So. 2d 329, 336-37

(Fla. 3d DCA 2008) (Cope, J., concurring in part,

dissenting in part) (“court has the discretion to order

supplemental briefs on an issue raised by the court sua

sponte.”). The Eleventh Circuit, for example, has a strict

standard:

Parties must submit all issues on appeal in

their initial briefs. When new authority arises

after a brief is filed, this circuit permits parties

to submit supplemental authority on

“intervening decisions or new developments”

regarding issues already properly raised in the

initial briefs. Also, parties can seek permission

of the court to file supplemental briefs on this

new authority. But parties cannot properly

raise new issues at supplemental briefing, even

38

if the issues arise based on the intervening

decisions or new developments cited in the

supplemental authority.

United States v. Nealy, 232 F.3d 825, 830 (11th Cir.

2000) (internal citations omitted). See also [Barry A.]

Miller, [Sua Sponte Appellate Rulings: When Courts

Deprive Litigants of An Opportunity To Be Heard, 39

San Diego L. Rev. 1253, 1256 (Fall 2002),] [] at 1307-08

(contrasting adversary process model, which focuses

narrowly only on issues raised by parties and applies

waiver rule rotely, with equity model, which focuses

more broadly on achieving justice—or avoiding

injustice—and applies waiver rule less strictly).

Florida Carry, Inc. v. UNF, 133 So. 3d 966, 988 n.29 (Fla. 1st

DCA 2013) (Makar, J., concurring).

Our Court has no formal protocol that defines a panel’s

discretion to broaden its scope of appellate review as to unraised

issues; nor do we have a formal protocol for when supplemental

briefs ought to be requested. 1 On this point, in Florida Carry v.

UNF, the three-judge panel asked for supplemental briefing on a

constitutional issue the university had not raised, which—after

en banc review was granted—led to written opinions

discrediting/championing that issue as a basis for affirmance. 133

So. 3d at 976-77 (“The original panel asked the parties to be

prepared to speak on the application of article IX, section 7, in

oral argument and then required briefing on the issue.”)

(comparing majority opinion of Judge Roberts on art. IX, s. 7, Fla.

Const., with dissenting opinion of Judge Padovano). The en banc

majority touched upon the practice of a three-judge panel raising

new issues in the context of the “tipsy coachman” rule, which

holds that affirmance is permissible, even if the trial court’s

1 Our internal operating procedures address only

supplemental briefing in en banc cases where requested by a

third or more of participating judges. See Internal Operating

Procedure 6.9 (July 2018).

39

reasoning was incorrect, if the record supports the result of a trial

court’s ruling. 2 Id. at 976-77. Because the three-judge panel had

ordered supplemental briefing, the en banc majority said that the

“dissent is entitled to make a ‘tipsy coachman’ argument in order

to affirm.” Id. (emphasis added). The majority went on to say,

however, that “any argument that UNF’s regulation fails because

it did not have authority delegated by the board of governors

constitutes a ‘tipsy coachman’ reversal—a jurisprudential device

unknown in the law.” Id. at 977 (emphasis added).

Turning to this case, the Commission raised only nuisance-

based grounds for reversal on appeal; it did not raise and argue

the takings claim. No briefs or citations of authority suggested

the takings claim was an issue for resolution on appeal. 3 The

2 See Robertson v. State, 829 So. 2d 901, 906 (Fla. 2002)

(“This longstanding principle of appellate law, sometimes

referred to as the ‘tipsy coachman’ doctrine, allows an appellate

court to affirm a trial court that ‘reaches the right result, but for

the wrong reasons’ so long as ‘there is any basis which would

support the judgment in the record.’”).

3 The Commission’s initial brief raised two issues:

(a) whether the elements for the temporary injunction of a

nuisance had been met; and (b) whether the Commission had

sovereign immunity because the homeowners’ nuisance claim was

directed at its discretionary functions versus operational

functions (the former having immunity, the latter not). Neither

issue addressed a takings theory. The twelve cases cited in its

initial brief addressed the two nuisance-related issues raised on

appeal. Eleven of the cases make no mention of a takings theory.

Within one of the twelve cases is discussion of a takings claim,

Crowley Museum & Nature Ctr., Inc. v. Sw. Fla. Water Mgmt.

Dist., 993 So. 2d 605, 608 (Fla. 2d DCA 2008), but the

Commission cited the case solely for matters unrelated to a

takings theory. See Initial Br. at 12-14. The Commission’s reply

brief was similarly limited to only nuisance-based arguments.

Parker-Cyrus v. Justice Admin. Comm’n, 160 So. 3d 926, 928

(Fla. 1st DCA 2015) (An “argument may not be raised for the first

time in a reply.”). Finally, the only takings argument the

40

panel majority, however, says that it may undertake “de novo”

appellate review of this unraised theory because “implicit in the

trial court’s sovereign immunity ruling is the court’s

determination that the constitutional [takings] claims were

legally sufficient.” (Emphasis added). But it was incumbent on

the Commission to raise this issue on appeal in some meaningful

way; we typically don’t have jurisdiction to raise and resolve an

issue as a basis for reversal, implicit or otherwise, in a trial

court’s ruling, unless it is brought to our attention and briefed on

appeal (with the exceptions discussed above). Close questions

arise as to whether an issue or argument has been presented on

appeal, but that’s not the case here.

The panel majority also says the Commission “argues that

sovereign immunity bars [the property owners’] takings claims

because the allegations in the complaint were legally

insufficient,” but no such argument was presented in the

Commission’s briefs. The only mention of a takings claim in the

initial brief are two words—“or takings”—interlineated in a

sentence near the end of FWC’s summary of the argument (“The

facts of this lawsuit as alleged by the Plaintiffs are not sufficient

to maintain a cause of action against FWC for nuisance or

takings claims.”) (emphasis added). No legal argument, citation of

authority, or recitation of FWC’s trial court analysis on the

takings claims was presented thereafter. Our supreme court has

said that this type of “cursory claim”—unsupported by legal

argument—is “insufficiently pled” and thereby deemed a waiver

of the issue. For example, in Bryant v. State, 901 So. 2d 810, 827-

28 (Fla. 2005), the court deemed an issue waived when the only

reference to it was a phrase (“illegal coercion by police”) in an

Commission raised in the trial court was narrow and abbreviated:

it claimed the property owners had not pled a “per se” takings

claim (versus other types), citing a couple of takings cases. See

Comm.’s Mot. for Summ. J. at 11-12. That takings argument was

not raised on appeal, and none of the cases the Commission cited

in the trial court as to the takings claim were cited in its initial

brief.

41

opening paragraph and a “brief paragraph” thereafter containing

a factual recitation of police conduct. Id. at 827. “Such a cursory

argument is insufficient to preserve the issue for consideration.”

Id.; see also Duest v. Dugger, 555 So. 2d 849, 852 (Fla. 1990) (“The

purpose of an appellate brief is to present arguments in support

of the points on appeal. Merely making reference to arguments

below without further elucidation does not suffice to preserve

issues, and these claims are deemed to have been waived.”).

Likewise, the supreme court found waiver where the “entirety of

[appellant’s] argument in his initial brief is comprised of two

sentences that do not cite any case law or refer to any facts that

could have supported his argument . . . . Accordingly, we conclude

that this claim is insufficiently pled.” Knight v. State, 225 So. 3d

661, 675 (Fla. 2017).

These cases illustrate that appellants cannot simply insert a

legal phrase (here, “or takings”) in an initial brief, make no

argument (or even a “cursory” one), and expect an appellate court

to address the matter. For this reason, the property owners

surely were taken aback when they found out the panel majority

had not only vacated the temporary injunction but had dismissed

their entire case on the basis of an unraised claim—and done so

without notice to, and supplemental briefing by, the parties. The

result of adjudicating the takings claim without briefing by the

parties is that the law of takings is now a bit more muddled, 4 a

4 This nuisance-based takings claim is a hybrid between a

regulatory taking (which requires no physical invasion but must

be a total deprivation of use of property, even temporarily) and a

physical taking (a trespass or physical invasion), best reflected in

foundational cases such as Richards v. Washington Terminal Co.,

233 U.S. 546, 557 (1914). In Richards, the Supreme Court held

that a plaintiff could seek relief for a taking if the governmental

action imposed “special and peculiar” damages on a neighboring

property owner (who was next to a new railroad tunnel). Id.; see

also Argent v. United States, 124 F.3d 1277, 1284 (Fed. Cir. 1997)

(Plaintiffs stated takings claim where “burdensome pattern of

[flight] activity” was alleged.). The principle in this line of cases is

that a government-created nuisance may support a takings claim

42

reason why the property owners have justifiably sought

rehearing and rehearing en banc based on decisional conflicts, as

well as a certified question: “Whether a compensable taking may

arise from recurrent trespasses and physical incursions upon

private property, even if of finite duration, by invitees licensed by

the Florida Fish and Wildlife Conservation Commission to

conduct hunting in an adjacent state wildlife management area.”

Even if supplemental briefing had been sought from the

parties, the basis for doing so would be to reverse the injunction

(and dismiss the case), which Florida Carry says can’t be done,

thereby creating direct intramural precedential tension. The

issue of the extent to which a panel can expand the scope of

appellate review is worthy of the Court’s collective discussion, no

matter how it is resolved. Absent that discussion, this case sets a

precedent for panels having discretion to expand the scope of

appellate review without notice to the parties or supplemental

briefing to reverse on a legal theory the appellant did not raise on

if the burden imposed is peculiar/special as to a limited set of

property owners who bear the burden disproportionately

compared to others. Harm arising from reasonable and normal

uses, if widely shared by the public at large, would not be

actionable as a taking; but burdens from a nuisance endured by a

handful of neighboring property owners may be actionable (i.e.,

states a claim for relief). See Richards, 233 U.S. at 557; Argent,

124 F.3d at 1284. Of course, not every nuisance is a taking, only

those that fit this narrow category as defined by the caselaw.

Under the facts alleged and developed in discovery, the property

owners have to take precautionary steps and refrain from normal

use of their properties for over a month during the holiday season

each year when an influx of hunting dogs and hunters come onto

their property (akin to taking precautions if ash or fumes invade

from a neighboring waste treatment plant). By dismissing the

takings claim outright on appeal—without the issue having been

raised or even briefed—the property owners have been deprived

of the ability to argue the takings issue and the law on takings

has been clouded.

43

appeal; no exception to the waiver rule is required. It ratchets

back the rote application of waiver rules, thereby lessening the

strictures of the adversary process model. Some will lament this

change, some will not, but the net result is that an objection that

an issue, argument or theory “wasn’t raised” is no longer an

insurmountable bar to a panel’s adjudication of a case. As the

general discussion above makes evident, however, much room

exists for debate and clarification of the extent of appellate court

power to do justice in each case within the parameters of an

adversarial model of adjudication, making the denial of en banc

review a lost opportunity.

44