Katina Paese v. State of Florida

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

KATINA PAESE,

Petitioner,

v.

STATE OF FLORIDA,

Respondent.

No. 4D2023-1103

[February 28, 2024]

Petition for Writ of Prohibition to the Circuit Court for the Seventeenth

Judicial Circuit, Broward County; Edward H. Merrigan, Jr., Judge; L.T.

Case No. 20-011120CF10A.

Kenneth David Padowitz and Joshua Padowitz of Kenneth Padowitz,

P.A., Fort Lauderdale, for Petitioner.

Ashley Moody, Attorney General, Tallahassee, and Lindsay A. Warner,

Senior Assistant Attorney General, West Palm Beach, for Respondent.

ARTAU, J.

This case presents us with the question of whether a high-rise

condominium dweller may, consistent with Florida’s Stand Your Ground

(“SYG”) law, use non-deadly force to prevent or terminate the tortious

interference with her personal property.

The State charged Katina Paese (“Paese”) with felony battery on a code

inspector. 1 Prior to trial, Paese moved to dismiss the charge on grounds

that the circumstances of the incident presented a prima facie case of a

justifiable use of non-deadly force pursuant to the SYG law. In support of

her motion, Paese argued that the SYG law gave her the statutory right to

use non-deadly force against the code inspector and three other men

involved in the incident because they “were wrongfully interfering with her

personal property [by] physically and visually intruding into her private

1 See § 784.03(1), Fla. Stat. (2020) (defining misdemeanor battery); § 784.083(3),

Fla. Stat. (2020) (reclassifying misdemeanor battery on a code inspector as “a

felony of the third degree”).

condominium unit.” She also argued that the State could not overcome

“her prima facie claim of self-defense immunity from criminal prosecution”

pursuant to section 776.032(4), Florida Statutes (2020), which places the

“burden of proof by clear and convincing evidence” on the State.

Likewise, Paese argues in the petition she filed here that this case

“stands at the intersection” of our SYG jurisprudence and her right to

privacy. She specifically contends, as she did in the trial court, that the

code inspector’s unauthorized “visual search” of the “interior spaces” of

her unit justified her use of non-deadly force to prevent or terminate the

“taking of photographs” of “the interior of her home.” She further argues

that the State failed to prove by clear and convincing evidence that the

non-deadly force she employed to terminate the encounter was objectively

unreasonable.

We agree with Paese’s arguments. We therefore conclude that Paese is

entitled to immunity from prosecution because her use of non-deadly force

to prevent or terminate the tortious interference with her personal property

was consistent with the level of authorized force permitted by the SYG law.

Background

At the time of the incident at issue, Paese was a resident of a high-rise

condominium complex. One of the condominium’s elevators opens into

Paese’s private unit with a key fob that provides her with exclusive access.

The evidence presented at the immunity hearing established that the

incident at the heart of this case began when she threw a roll of duct tape

into the interior of the elevator after four men used a “master” key fob to

override her exclusive access by stopping on her floor and opening the

elevator door that separates the elevator’s interior from Paese’s unit. Paese

threw the roll of tape from a place comfortably within the interior of her

unit and in the direction of the four men who were standing in the open

elevator as the elevator rested at the private landing for her unit.

When Paese first observed the four men in the open elevator, one of

them had extended his arm into an area described as a “foyer” to hold the

elevator door open. That individual was the condominium’s property

manager whom Paese knew. Paese did not know the other three men.

Thereafter, Paese saw one of the four men raise his cell phone to begin

taking photographs of the interior of her unit. That man was the code

inspector alleged to be Paese’s victim.

It is undisputed that Paese’s alleged victim was not in a uniform

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signifying his status as a code inspector. It is also undisputed that the

alleged victim never showed Paese his code inspector’s badge at any point

during the incident, nor did he verbally identify himself to her as being a

code inspector.

Paese testified that she was “shocked” when she saw the four men, none

of whom she was expecting at that time, in the open elevator. In fact,

immediately prior to their arrival, Paese had expressly told a building

security officer, who was calling on the property manager’s behalf to

request Paese’s consent for access to her unit, that it was not a good time

for the property manager to bring anyone up to her unit. In other words,

Paese did not consent and had instead notified the men not to come to her

unit before they suddenly appeared in the open elevator at the threshold

of her unit taking pictures of the interior of her home despite the

undisputed fact that she never gave permission for any of the men to open

the elevator door at the private landing that provides exclusive access to

her unit.

Paese explained her reaction upon seeing the four men as follows:

Well, I was very upset, because I clearly told them that they

were not allowed to come up to my unit, and they’re not

supposed to, and [the property manager] clearly overrode the

security to come up and used a master fob, to override the

security to come up to my unit. . . . That’s the only way you

can get up there. . . . So I was very mad, I was very upset with

him, and I said how dare you come up here without my

permission. . . . He overrode the security to come up to my

unit without my permission. I never gave him permission to

come up and that is a rule in our building. You do not come

up without a unit owner’s permission.

....

I’m yelling at them to leave. I said leave, get out of here, get

out of here, how dare you come up here to my unit, how dare

you come up here. How dare you come up here. I said you

don’t have permission to come up to my unit, leave, leave, stop

taking photos of me, stop taking photos. And they wouldn’t

stop and they wouldn’t leave.

As the alleged victim himself admitted, none of the men pressed the

elevator button to leave after Paese demanded that they do so, nor did the

property manager remove his arm that extended into Paese’s foyer to keep

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the elevator door open to her unit.

Paese then approached the open door of the elevator and continued

demanding that the men leave. When they did not, Paese reached into the

elevator and swatted the alleged victim’s cell phone out of his hand,

knocking it to the elevator’s floor. At that point, the property manager

removed his extended arm as a barrier to the elevator door closing and

ended the encounter. This constituted the extent of any physical contact

between Paese and the alleged victim during the entirety of the incident.

The code inspector suffered no physical injuries in the incident.

Paese testified that her key fob provides her exclusive access to her

unit. In addition, she testified that the key fob does not provide her with

access to any other unit or foyer. As Paese explained, “it’s only

programmed for my side of the elevator, on my floor, that’s it.” Paese

testified that she, therefore, considers her key fob “to be the key to open

the door to [her] private residence.”

An assistant property manager who was not involved in the incident

testified for the State. She described the area into which the elevator opens

at Paese’s unit as a “foyer,” which she considered “a limited common

element.” However, the assistant property manager did not provide any

documents establishing the legal status of the foyer, and the State did not

introduce any such documents into evidence.

Paese testified that nobody in the building has a right to access her

foyer or the rest of her unit without her permission. Paese also described

the foyer as “a little area” in her private unit for her exclusive use:

Everyone in my stack with that particular style of condo, with

the private elevators, everybody decorates their vestibules,

put[s] shoes, furniture, plants, your own tile, you’re

responsible for the painting, the light fixture in there that’s

[sic] you pay for that electricity, all of it is custom to however

you want to make it. . . . It’s just a little area.

Contrary to Paese’s testimony, the assistant property manager testified

that “anyone in the building can access her foyer” with his or her key fob.

The assistant property manager also testified that a secondary door was

supposed to be in between the foyer and the rest of Paese’s unit. However,

the three men who accompanied the code enforcement officer at the time

of the incident were aware that Paese’s secondary door was missing

because of ongoing planned renovations. Indeed, the reason they brought

the code enforcement officer to Paese’s unit was to document the missing

4

secondary door. Thus, the four men used a master key fob to override

Paese’s exclusive access and open the elevator door into Paese’s unit

knowing full well that it would provide them with unobstructed access to

the interior of the unit, including the personal property of Paese and her

family located not only in the foyer area, but also in the rest of her unit. 2

Less than a week after the immunity hearing, but before the trial court

ruled on Paese’s motion to dismiss, defense counsel moved to reopen the

proof for the purpose of presenting additional evidence showing that

Paese’s key fob provides elevator access to only her unit, as she testified,

contrary to the assistant property manager’s testimony that any resident’s

key fob can provide access to any unit’s foyer in the building. The trial

court denied defense counsel’s motion without comment.

Subsequently, after deposing both the property manager and the

assistant property manager, defense counsel sought reconsideration of the

trial court’s decision not to allow the requested reopening of the proof. In

support of this motion, defense counsel presented the trial court with

excerpts from the assistant property manager’s deposition in which she

recanted her testimony at the immunity hearing by admitting that she had

no knowledge about what access a resident’s key fob provided to any other

unit or foyer in the building. Defense counsel also presented the trial court

with excerpts from the property manager’s deposition in which he admitted

that Paese’s key fob provides her exclusive elevator access to only her unit,

and that no other resident’s key fob can access Paese’s unit or foyer.

Rather than formally reopen the proof, the trial court orally ruled at the

hearing on Paese’s reconsideration motion that it would consider the

submitted deposition excerpts as part of the proof presented at the

immunity hearing.

In its denial of the motion to dismiss, the trial court analyzed Paese’s

immunity claim as being based on an asserted right to use “deadly force”

during the incident, rather than “non-deadly force” as she asserted in her

motion. The trial court then concluded that deadly force could not be used

by Paese because the code inspector “was not committing a forcible felony”

during the encounter. However, Paese never asserted a right to use deadly

2 Even if the secondary door had not been removed, Paese had the right to keep

her secondary door open at any time without diminishing her expectation of

privacy and her right to the quiet enjoyment of her property. See Quiet

Enjoyment, Black’s Law Dictionary (6th ed. 1990) (A property “tenant or grantee

shall enjoy the possession and use of the premises in peace and without

disturbance.”).

5

force in support of her immunity claim, nor did the State present any proof

that Paese ever used or threatened to use deadly force.

Thus, the trial court evaluated Paese’s actions based on an inapplicable

subsection of the SYG law—776.031(2)—rather than the applicable

subsection—776.031(1)—when it concluded that the State proved by clear

and convincing evidence that she was not entitled to immunity from

prosecution. Compare § 776.031(1), Fla. Stat. (2020), with § 776.031(2),

Fla. Stat. (2020).

Paese petitions here for a writ of prohibition asserting her entitlement

to immunity from prosecution pursuant to the SYG law.

Analysis

The standard of review applicable to our disposition of Paese’s petition

requires us to “defer to the trial court’s findings of fact.” Burns v. State,

361 So. 3d 372, 375 n.2 (Fla. 4th DCA 2023). However, we “review de novo

the trial court’s legal conclusions drawn from those facts.” Id.

Preservation and Presentation of Error

The dissent asserts that Paese failed to adequately preserve for

appellate review or advance in support of her petition the argument upon

which our grant of relief is based. We agree with the dissent that

preservation of a claim of error for appellate review requires a criminal

defendant to present to the trial court “the specific legal argument or

ground to be argued on appeal.” Tillman v. State, 471 So. 2d 32, 35 (Fla.

1985). However, “no magic words are needed.” Murray v. State, 3 So. 3d

1108, 1117 (Fla. 2009). As this court has observed, an issue will be

considered preserved for appellate review if “the articulated concern”

voiced by counsel to the trial court is “sufficiently specific to inform the

trial court of the alleged error.” Harden v. State, 87 So. 3d 1243, 1245

(Fla. 4th DCA 2012).

While we recognize the “requirement of specific argument and briefing

is one of the most important concepts of the appellate process,” D.H. v.

Adept Cmty. Servs., Inc., 271 So. 3d 870, 888 (Fla. 2018) (Canady, J.,

dissenting), the case upon which the dissent relies in arguing that we are

granting relief on an unargued ground provides that this most basic of

appellate duties is discharged by counsel “prepar[ing] appellate briefs so

as to acquaint the [appellate] [c]ourt with the material facts, the points of

law involved, and the legal arguments supporting the positions of the

6

respective parties.” Polyglycoat Corp. v. Hirsch Distribs., Inc., 442 So. 2d

958, 960 (Fla. 4th DCA 1983).

Moreover, an appellate court is not required to wear blinders in

addressing a properly preserved argument that lacks citation to legal

authority. See Williams v. State, 414 So. 2d 509, 511-12 (Fla. 1982) (While

“counsel did not specifically cite to the prohibition against ex post facto

laws as the basis for his legal argument[,] . . . . [h]is articulated concern

with whether the effective date of section 947.16(3) permitted the statute’s

application to petitioner’s case was sufficiently specific” for appellate

review.); see also Harden, 87 So. 3d at 1245 (“As a preliminary matter, we

find that this issue was preserved. Notwithstanding the fact that defense

counsel did not use the magic word ‘propensity,’ it is apparent that defense

counsel’s articulated concern was sufficiently specific” for appellate review

despite defense counsel’s failure to “specifically argue that the victim’s

testimony was ‘evidence of other bad acts which served only to show

propensity to commit crime.’” (citing Conner v. State, 987 So. 2d 130, 133

(Fla. 2d DCA 2008))).

Contrary to the dissent’s assertion, Paese not only sufficiently

articulated in her petition the argument upon which we grant relief, she

also articulated that same argument in her motion to dismiss and

memorandum of law filed in the trial court. She argued that the SYG law

gave her the statutory right to use non-deadly force against the code

inspector and three other men involved in the incident because they “were

wrongfully interfering with her personal property [by] physically and

visually intruding into her private condominium unit.” She therefore

adequately preserved for appellate review and advanced in support of her

petition the legal argument upon which we determine this case. Despite

Paese’s argument, the dissent accuses the majority of departing from

neutrality by reaching the very issue argued by her in this appeal. We

have unquestionably determined this appeal in a neutral and detached

manner with fidelity to the law. 3

3 The dissent also incorrectly asserts that we have improperly used the tipsy

coachman rule to grant relief. We have not. The tipsy coachman rule provides

that “if a trial court reaches the right result, but for the wrong reasons, it will be

upheld if there is any basis which would support the judgment in the record.”

Dade Cnty. Sch. Bd. v. Radio Station WQBA, 731 So. 2d 638, 644 (Fla. 1999)

(emphasis added). We do not conclude that the trial court reached the “right

result.” To the contrary, we conclude that the trial court reached the wrong result

when it denied Paese immunity from criminal prosecution. Therefore, the tipsy

coachman rule is immaterial to our determination of this case.

7

The Justifiable Use of Non-Deadly Force

Florida grants a right to “[i]mmun[ity] from criminal prosecution and

civil action for the [justifiable] use or threatened use of such force”

permitted by sections 776.012, 776.013, or 776.031, Florida Statutes

(2020), except in certain circumstances not applicable in this case.

§ 776.032(1), Fla. Stat. (2020). 4 As our supreme court explained in Dennis

v. State, 51 So. 3d 456, 462 (Fla. 2010), “[s]ection 776.032(1) expressly

grants defendants a substantive right to not be arrested, detained,

charged, or prosecuted as a result of the use of legally justified force.”

Whether a defendant was justified in using a particular level of force

against another must be evaluated in accordance with “the objective,

reasonable person standard.” Bouie v. State, 292 So. 3d 471, 481 (Fla. 2d

DCA 2020) (quoting Montanez v. State, 24 So. 3d 799, 803 (Fla. 2d DCA

2010)). Under that standard, the legal question to be resolved in all SYG

cases is whether “a reasonable and prudent person in the same position

as the defendant would believe” that the level of authorized force used was

“necessary” to prevent the harm or offense for which such force is

statutorily permitted. Id.; see also Huckelby v. State, 313 So. 3d 861, 866

(Fla. 2d DCA 2021) (applying the objective “reasonable and prudent

person” standard to the use of non-deadly force pursuant to the plain

language of the SYG law); Garcia v. State, 286 So. 3d 348, 351 (Fla. 2d

DCA 2019) (“The trial court must determine whether, based on the

circumstances as they appeared to the defendant, a reasonable and

prudent person situated in the same circumstances and knowing what the

defendant knew would have used the same force as did the defendant.”).

Section 776.031(1) provides:

A person is justified in using or threatening to use force, except

deadly force, against another when and to the extent that the

person reasonably believes that such conduct is necessary to

prevent or terminate the other’s trespass on, or other tortious

or criminal interference with, either real property other than a

dwelling or personal property, lawfully in his or her possession

4 The immunity does not apply if “the person using or threatening to use force

knew or reasonably should have known that the [victim] was a law enforcement

officer.” § 776.032(1), Fla. Stat. (2020). This exception does not apply here

because the code inspector is not a law enforcement officer. See § 125.69(4)(f),

Fla. Stat. (2020) (“Nothing in this subsection shall be construed to authorize any

person designated as a code inspector to perform any function or duties of a law

enforcement officer[.]”).

8

or in the possession of another who is a member of his or her

immediate family or household or of a person whose property

he or she has a legal duty to protect. A person who uses or

threatens to use force in accordance with this subsection does

not have a duty to retreat before using or threatening to use

such force.

§ 776.031(1), Fla. Stat. (2020) (emphasis added).

This court recently held that section 776.031(1)’s plain language

authorizes the use of non-deadly force to prevent or terminate the tortious

or criminal interference with one’s personal property. See Burns, 361 So.

3d at 377 (holding that the defendant was justified in using non-deadly

force to prevent or terminate “the reasonably perceived tortious and

criminal interference with his dogs, which are his personal property”).

Here, it is undisputed that Paese did not consent to the property

manager’s use of a master key fob to gain elevator access to her unit’s

private landing and foyer for the purpose of allowing the code inspector to

photograph the interior of her home.

Paese testified that the foyer was her exclusive property. The assistant

property manager testified that the foyer was a “limited common element.”

“Limited common elements” are statutorily defined as “elements which

are reserved for the use of a certain unit . . . to the exclusion of all other

units, as specified in the declaration.” § 718.103(19), Fla. Stat. (2020)

(emphasis added).

The State, despite having the burden to prove by clear and convincing

evidence that Paese was not entitled to SYG immunity, never introduced

into evidence the condominium’s governing documents. Therefore, we

cannot speculate as to how the foyer was legally described or identified in

the condominium declaration or any other governing document. However,

the statutory definition makes it abundantly clear that if the foyer was a

“limited common element” it was “reserved” for Paese’s exclusive use.

Moreover, because the foyer was “reserved” for Paese’s exclusive use,

she had the right to keep her secondary door open at any time. Therefore,

Paese would have had an expectation of privacy and the right to the quiet

enjoyment of her property regardless of whether the secondary door was

open or removed because an open secondary door is no different than a

removed secondary door.

9

In addition, a condominium “unit owner is entitled to the exclusive

possession of his or her unit, subject [only] to the provisions of s.

718.111(5).” § 718.106(3), Fla. Stat. (2020) (emphasis added).

While section 718.111(5) does provide a condominium association with

an “irrevocable right of access to each unit,” the statute specifies that such

access is only available “during reasonable hours, when necessary for the

maintenance, repair, or replacement of any common elements . . . or as

necessary to prevent damage to the common elements or to a unit.” §

718.111(5)(a), Fla. Stat. (2020) (emphasis added). Here, the State did not

present any evidence that the association needed to enter Paese’s unit “for

the maintenance, repair, or replacement” of anything in its common

elements. The State also did not present any evidence of any emergency

necessitating immediate entry into Paese’s unit “to prevent damage” to the

common elements or another unit.

The association therefore could not legally access Paese’s unit without

either her consent or proper notice to enter at “reasonable hours.” In fact,

absent an emergency, a condominium association cannot even access an

abandoned unit without written notice of no less than “2 days” to the

owner of record for that unit. See § 718.111(5)(b)2., Fla. Stat. (2020)

(“Except in the case of an emergency, an association may not enter an

abandoned unit until 2 days after notice of the association’s intent to enter

the unit has been mailed or hand-delivered to the owner at the address of

the owner as reflected in the records of the association.” (emphasis

added)).

The dissent asserts that the State had met its burden of establishing

the property manager’s legal authority to access Paese’s private entry to

her unit. However, the record is devoid of evidence establishing the

property manager’s authority to intrude on Paese’s privacy by overriding

her exclusive access without proper notice or legal process.

The record is also devoid of any evidence establishing that the code

inspector had any independent legal authority to access Paese’s private

unit to take pictures of its interior without her consent or appropriate legal

process.

Although the four men were legally entitled to be inside the elevator

itself, they were not legally entitled to use a master key fob to override

Paese’s exclusive access to her private home, nor were they legally entitled

to hold the elevator door open so that the code inspector could continue to

intrude on her privacy by taking photographs of its interior, including the

personal property in her home. Thus, the dissent’s assertion that the code

10

inspector was present with the property manager’s permission is

irrelevant. If the property manager was not legally entitled to override

Paese’s exclusive access to her unit without proper notice or legal process,

then the code inspector could not do so either.

One who “physically or electronically intrud[es] into [another’s] private

quarters” can be held liable for the tort of invasion of privacy in Florida.

Agency for Health Care Admin. v. Associated Indus. of Fla., Inc., 678 So. 2d

1239, 1252 n.20 (Fla. 1996) (emphasis added). This tort was first

recognized in Florida in Cason v. Baskin, 20 So. 2d 243, 250 (Fla. 1944)

(en banc). As our supreme court explained in Allstate Insurance Co. v.

Ginsberg, 863 So. 2d 156, 162 (Fla. 2003), this tort provides a civil remedy

for the wrongful intrusion “into a ‘place’ in which there is a reasonable

expectation of privacy and is not referring to a body part.”

There can be no doubt that “the highest reasonable expectation of

privacy” a person can have is “when he [or she] is in his [or her] home for

it is [the] sanctuary of privacy[.]” Sarmiento v. State, 371 So. 2d 1047,

1050 (Fla. 3d DCA 1979), approved, 397 So. 2d 643, 645 (Fla. 1981). This

is particularly true here where the four men unexpectedly breached

Paese’s “sanctuary of privacy” by opening the private entry to her home to

peer inside, inspect her property, and photograph her belongings without

proper notice or legal process.

In Rawls v. Conde Nast Publ’ns, Inc., 446 F.2d 313 (5th Cir. 1971), the

Fifth Circuit Court of Appeals, which had federal court jurisdiction over

Florida prior to the 1981 creation of the Eleventh Circuit, recognized

“Florida’s cause of action for the tortious invasion of privacy” in a diversity

jurisdiction case applying Florida law where an alleged tortfeasor

intrusively took unwelcomed pictures of the interior of plaintiff’s home and

her possessions. Id. at 316-18. Rawls explained that “it is not necessary

to name or picture the plaintiff” to be actionable upon publication “if

sufficient identification [of the plaintiff as the owner of the possessions] is

otherwise made.” Id. at 318 (quoting Arthur B. Hanson, Libel and Related

Torts 204 (1969)). In other words, Florida recognizes a cause of action for

the tortious invasion of privacy against a tortfeasor who improperly

accesses a private home and photographs the possessions inside the

home, if its owner, whose privacy was violated, is otherwise identified. Id.

Because section 776.031(1) permits the proportionate use of non-

deadly force “to prevent or terminate” the “tortious or criminal interference”

with “personal property,” Paese was justified in using such force to simply

prevent the tortious conduct even before any publication of the identifying

pictures. § 776.031(1), Fla. Stat. (2020) (emphasis added).

11

Thus, we conclude that, pursuant to section 776.031(1), it was

objectively reasonable for Paese to perceive the four men’s unauthorized

use of a master key fob to override her exclusive access and intrude upon

her private home while taking unwelcomed photographs of its interior,

including the personal property in her home, as the tortious interference

with her personal property that she could justifiably prevent or terminate

with the proportionate use of non-deadly force—i.e., by throwing the roll

of duct tape towards the open elevator and swatting the cell phone out of

the alleged victim’s hand. See Burns, 361 So. 3d at 377-78 n.5 (“Notably,

the plain language of section 776.031(1) would not have prohibited Burns

from using non-deadly force before the tree-cutting crew became

trespassers as the statute allows the use of non-deadly force when a

person ‘reasonably believes that such conduct is necessary to prevent or

terminate the other’s trespass on, or other tortious or criminal interference

with, either real property other than a dwelling or personal property.’”

(quoting § 776.031(1), Fla. Stat. (2020))).

Moreover, because Paese was justified in using non-deadly force to

protect her personal property as alternatively permitted by section

776.031(1), it is immaterial whether the men had trespassed upon the

non-dwelling portion of her unit at the time of the encounter. See

Sparkman v. McClure, 498 So. 2d 892, 895 (Fla. 1986) (explaining that

when the Legislature uses the word “or” in a statute it is to be interpreted

in the disjunctive indicating “that alternatives were intended”). 5

The Dissent’s Mischaracterization of the Common Law

The dissent mischaracterizes the common law in asserting that we have

engaged in a “result-oriented exercise of jurisprudence.” To justify this

assertion, the dissent incorrectly borrows a common law term applicable

only to defense of person cases—“physical harm”—to argue that our

interpretation represents a “sea change” from “600 years of the common

law” despite its absence as a prerequisite for the justifiable use of non-

deadly force in either the SYG statute we are interpreting here—section

776.031(1)—or in the common law privilege to defend one’s property or

chattels.

5 Paese also argued that she was justified in using non-deadly force pursuant to

section 776.031(1) “to prevent or terminate” the “trespass” upon the private entry

to her foyer which she considers her curtilage or an exclusive interest in “real

property other than a dwelling.” We do not reach this issue in view of the

alternative justification for use of non-deadly force permitted by the statute.

12

Our interpretation of the SYG statute is not a “sea change” from the

common law. Rather, our interpretation is consistent with the common

law. Indeed, the common law recognized a “privilege to use reasonable

force, not intended or likely to cause death or serious bodily harm, to

prevent or terminate another’s intrusion upon the actor’s land or chattels[.]”

Restatement (Second) of Torts § 77 (Am. L. Inst. 1965) (emphasis added);

see also DPP v. Bayer (2004) 1 Cr. App. R. 38 (QB) [498] (appeal taken from

Eng.) (“It is a principle of the common law that a person may use a

proportionate degree of force to defend . . . his property or the property of

others[.]” (first citing Hale, Pleas of the Crown, Vol.1 Ch.8; then citing

Blackstone, Laws of England, Book 3, Ch.1; then citing Stephen, Digest of

the Criminal Law, Art.306; then citing Hanway v. Boultbee (1830) 1 Moo

and Rob 15; and then citing R v. Rose (1847) 2 Cox C.C. 329)).

“[T]he Restatement of Torts as a whole reflects . . . [the] spirit of our common law[.]”

Restatement (Second) of Torts Intro. (emphasis added) (quoting William Draper Lewis,

Director, Am. L. Inst.); see also Restatement of the Law, Legal Info. Inst.,

https://www.law.cornell.edu/wex/restatement_of_the_law (last visited Dec.

13, 2023) (“The ALI [American Law Institute] created Restatements to help courts

understand and interpret the current common law.” (emphasis added)). In fact, the

Restatements consist of “the fruit of the labor of the best legal minds in the diverse fields

of law” reported in a “series of volumes authored by the American Law Institute” restating

the common law. Restatement of Law, Black’s Law Dictionary (6th ed. 1990).

In its entirety, section 77 of the Restatement (Second) of Torts describes

the common law privilege to defend one’s property or chattels as follows:

An actor is privileged to use reasonable force, not intended or

likely to cause death or serious bodily harm, to prevent or

terminate another’s intrusion upon the actor’s land or chattels,

if[:]

(a) the intrusion is not privileged or the other intentionally or

negligently causes the actor to believe that it is not

privileged, and

(b) the actor reasonably believes that the intrusion can be

prevented or terminated only by the force used, and

(c) the actor has first requested the other to desist and the

other has disregarded the request, or the actor reasonably

believes that a request will be useless or that substantial

harm will be done before it can be made.

13

Restatement (Second) of Torts § 77 (emphasis added); see also W. Page

Keeton et al., Prosser and Keeton on Torts, § 21 (5th ed. 1984) (citing

Restatement (Second) of Torts § 77) (generally discussing the common law

right to use non-deadly force in defense of chattels).

The dissent cites to section 217 of the Restatement to assert that the

Restatement, albeit in another section, defines “intermeddling” as

“physical contact.” See Restatement (Second) of Torts § 217 (“Ways of

Committing Trespass to Chattel”). However, that section applies only to a

trespass. By definition, a trespass requires actual or implied “physical

contact” with land or chattel. See Trespass, Black’s Law Dictionary (4th

ed. 1968) (“An unlawful act committed with violence, actual or implied,

causing injury to the person, property, or relative rights of another; an

injury or misfeasance to the person, property, or rights of another, done

with force and violence, either actual or implied in law.” (emphasis added)).

The section upon which we rely—section 77—is the section applicable

to the common law privilege to use non-deadly force to prevent or

terminate the tortious interference with one’s chattels. Section 77 neither

uses the term “intermeddling,” nor does it require an act of “physical

contact” before one could invoke the privilege to use non-deadly force to

prevent or terminate the tortious interference with one’s chattels.

The privilege to use non-deadly force to prevent or terminate

interference with one’s personal property or chattels was therefore

distinctly recognized at common law. Contrary to the dissent’s assertion,

the common law as described in section 77 does not condition the right to

forcefully prevent or terminate interference with a person’s personal

property or chattels upon any “physical contact” or threat of “physical

harm.”

In addition, Paese’s actions were consistent with both her statutory

right to immunity from prosecution for her justifiable use of non-deadly

force and her common law right to use such force to prevent or terminate

the interference with her personal property or chattels. It was only after

the four men disregarded Paese’s multiple verbal requests to desist from

tortiously interfering with her personal property, and depart from the

private entry to her home, that she used a proportionate amount of force

to reasonably prevent or terminate their unprivileged actions.

The dissent argues that our Legislature cannot change the common

law—as the dissent asserts it did in section 776.031(1) by establishing

immunity from prosecution, eliminating any duty to retreat, and clarifying

the circumstances upon which the immunity could be invoked in defense

14

of personal property—without “expressly” stating so. However, the

presumption that a statute replaces the common law only when it

“expressly” says so applies only when the statute “abolish[es] common law

rights[.]” St. Angelo v. Healthcare and Ret. Corp. of Am., 824 So. 2d 997,

999 (Fla. 4th DCA 2002) (emphasis added) (quoting Courtney Enters., Inc.

v. Publix Super Mkts., Inc., 788 So. 2d 1045, 1049 (Fla. 2d DCA 2001)).

The dissent’s argument incorrectly assumes that our Legislature has

abolished a common law right. But the SYG statute we are interpreting

here does not abolish any common law right. Instead, the statute simply

augments and clarifies, without diminishing, the right to use reasonable

non-deadly force to “prevent or terminate” interference with a person’s

personal property or chattels. See § 2.01, Fla. Stat. (2020) (“The common

and statute laws of England . . . are declared to be of force in this state;

provided, the said statutes and common law be not inconsistent with the

Constitution and laws of the United States and the acts of the legislature

of this state.” (emphasis added)); see also Michelle Jaffe, Up in Arms over

Florida’s New “Stand Your Ground” Law, 154 Nova L. Rev. 155, 175 (2005)

(“Although it appeared the judiciary had finally settled Florida’s [common

law] duty to retreat and ‘castle doctrine’ laws, on October 1, 2005, its

decisions became obsolete, because on that day, Florida’s new ‘Stand Your

Ground’ law went into effect.”).

Moreover, section 776.031(1) does not include any requirement of a

threat of “physical harm” before a person is justified in using or

threatening to use non-deadly force in defense of personal property. In

fact, section 776.031(1) does not mention any threat of “physical harm.”

Instead, section 776.031(1) expressly provides that a person is justified in

using non-deadly force “when and to the extent that the person reasonably

believes that such conduct is necessary to prevent or terminate” another’s

“tortious or criminal interference with . . . personal property[.]” § 776.031(1),

Fla. Stat. (2020) (emphasis added).

In contrast, while not including the term “physical harm,” each of the

other inapplicable sections in the SYG statutory scheme that authorize the

use of non-deadly force—sections 776.012(1) and 776.013(1)(a)—seem to

require some threat of “physical harm” because they require another’s

“imminent use of unlawful force”—which by implication may cause

“physical harm”—before the defensive use or threat of non-deadly force is

justified. See generally §§ 776.012(1), 776.013(1)(a), Fla. Stat. (2020).

Unlike sections 776.012(1) and 776.013(1)(a), section 776.031(1) does

not contain any language requiring the “imminent use of unlawful force”

by another as a prerequisite to the justifiable use or threatened use of non-

15

deadly force “to prevent or terminate” the “tortious or criminal interference

with” a person’s personal property. Compare § 776.012(1), Fla. Stat.

(2020), and § 776.013(1)(a), Fla. Stat. (2020), with § 776.031(1), Fla. Stat.

(2020).

In interpreting a statute, we must presume that a legislative body “acts

intentionally and purposefully” when it “includes particular language in

one section of a statute but omits it in another section.” Beach v. Great

W. Bank, 692 So. 2d 146, 152 (Fla. 1997) (quoting Russello v. United

States, 464 U.S. 16, 23 (1983)). When the Legislature has used a term in

one section of a statute but has omitted it from another section, we “will

not imply it where it has been excluded.” Leisure Resorts, Inc. v. Frank J.

Rooney, Inc., 654 So. 2d 911, 914 (Fla. 1995).

Furthermore, if a statute’s language is clear, “courts have no occasion

to resort to rules of construction—they must read the statute as written,

for to do otherwise would constitute an abrogation of legislative power.”

Nicoll v. Baker, 668 So. 2d 989, 990-91 (Fla. 1996). Nevertheless, we note

that even if we were to resort to the canons of statutory construction, they

too would support our interpretation of section 776.031(1). See Antonin

Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts

93, 107, 174 (2012) (discussing the omitted-case canon, in which a matter

that is not covered in a statute is deemed to have been intentionally

omitted; the negative-implication canon, in which the listing of some

things implies the deliberate exclusion of others; and the surplusage

canon, in which every word is given effect and none is deemed

meaningless).

Because the Legislature chose to enact section 776.031(1)—justifying a

person’s use of non-deadly force “to prevent or terminate” the “tortious or

criminal interference with” a person’s personal property—without any

prerequisite of either a threat of “physical harm” or “unlawful force”—we

are required to give section 776.031(1) its plain and ordinary meaning. We

have done so here.

Conclusion

The trial court erroneously concluded that the State proved by clear

and convincing evidence that Paese was not legally entitled to immunity

from prosecution when she used non-deadly force to prevent or terminate

the tortious interference with her personal property after the four men

used a master key fob, without authority, to override her exclusive access

and intrude upon her private home while taking unwelcomed pictures of

its interior, including the personal property inside her home.

16

We emphasize that the force used by Paese was proportionate to her

right, pursuant to section 776.031(1), to “prevent or terminate” the

“tortious or criminal interference” with her “personal property.” Had she

employed force that was not reasonably tailored to simply prevent or

terminate the tortious conduct, the disproportionate force would not have

been justified.

It was only after the four men in the elevator disregarded Paese’s

multiple verbal requests to desist from tortiously interfering with her

personal property, and depart from the private entry to her home, that she

used a proportionate amount of force to prevent or terminate their

unprivileged actions.

We therefore issue the writ of prohibition directing the trial court to

grant Paese’s motion to dismiss, thereby discharging her from further

criminal prosecution on the felony battery charge.

Petition for writ of prohibition granted; case remanded with instructions.

FORST, J., concurs.

FORST, J., concurs specially with opinion.

GROSS, J., dissents with opinion.

FORST, J., concurring specially.

I concur in the majority opinion’s application of section 776.031(1),

Florida Statutes (2020), to the facts of this case.

Petitioner Paese told the property manager not to come up to her unit.

The property manager did not respond that he was coming up nonetheless,

nor did he explain the exigency of, or the authority for, his visit. The

property manager then used the master key fob to open the elevator door

and, without invitation, notice, announcement, explanation, or exigency,

the privacy of Paese’s residence and the personal property therein was

breached. At no point during the period when the elevator door was open

did the property manager or any of the other individuals in the elevator

identify the purported victim as a code enforcement officer or otherwise

explain the authority for their intrusion.

Did Paese use force once the elevator door opened to her unit? No. She

clearly expressed her surprise and unhappiness with this violation of her

privacy and her condo owner rights. In a similar situation, Paese may

17

have endeavored to shut the door to her unit. That option wasn’t available

here due to the intrusion coming from an elevator rather than a hallway.

Nonetheless, Paese clearly conveyed her desire that the property

manager and the three 6 other individuals in the elevator shut the elevator

door and leave. They did not, and one individual even used his arm to

keep the door open while the purported victim held his cell phone in a

manner that a reasonable person would believe was being used to capture

photo or video images of the interior of Paese’s residence and the personal

property therein.

As the tortious interference was ongoing with no explanation and no

end in sight, Paese took two actions that are the basis for the charges

against her: she threw a roll of duct tape into the elevator, and she “struck”

the phone from the purported victim’s hand.

An objective standard applies in evaluating the facts

presented in a Stand Your Ground motion to dismiss. The

trial court must determine whether, based on the

circumstances as they appeared to the defendant, a

reasonable and prudent person situated in the same

circumstances and knowing what the defendant knew would

have used the same force as did the defendant.

Garcia v. State, 286 So. 3d 348, 351 (Fla. 2d DCA 2019) (internal citations

omitted) (emphasis added).

Here, Paese used a minimal level of force, with no indication of an intent

to cause pain or harm. She did not swing a bat or any other object, nor

did she punch or bite or kick anybody. There is no claim that she threw

the duct tape with the intent or ability to harm anybody (the defendant is

named Paese, not Nolan Ryan or Sandy Koufax), or that her striking the

hand of the individual taking photos/video had the force of a karate

practitioner (it is undisputed that no injury was sustained by the

purported victim). This minimal force employed here was

proportionate and reasonable under the circumstances and the

reversal opinion should not be read as justification for anything else.

Thus, neither the dissent nor anyone else need “shudder to think about

the situations to which the majority opinion will be applied in the future,”

nor cause to question the majority’s “neutrality” or objectivity. See Acad.

6 I am not aware as to the rationale for two of the four individuals being included

on this expedition.

18

for Positive Learning, Inc. v. Sch. Bd. of Palm Beach Cnty., 315 So. 3d 675,

689 (Fla. 4th DCA 2021) (Forst, J., concurring).

GROSS, J., dissenting.

The majority opinion departs from hundreds of years of settled law and

expands the reach of Stand Your Ground statutes to situations involving

no threat of physical harm to persons and no “trespass, or other tortious

or criminal interference with, either real property other than a dwelling or

personal property[.]” § 776.031(1), Fla. Stat. (2020) (emphasis added).

The majority opinion mischaracterizes the facts and misapplies the law.

First, the elevator itself was not part of the defendant’s condominium

unit and was not in the defendant’s possession, but rather was a common

element for which the defendant did not have exclusive access.

Second, the four men did not gain entry or access to the defendant’s

condominium unit itself, nor did the defendant have a reasonable belief

that they were attempting to do so.

Third, the record does not support the majority’s contention that the

property manager was “not legally entitled” to use the master key fob to

take the elevator to the defendant’s floor, or to hold the elevator door open

while the men remained in the elevator.

Fourth, the majority essentially ignores that the right to prevent

interference with real property under section 776.031(1) is limited to real

property “other than a dwelling.”

Lastly, contrary to the majority’s conclusion, the victim’s conduct of

photographing the interior of the defendant’s home from the common

element elevator was not a “tortious or criminal interference” with the

defendant’s personal property.

This is not a case where brigands were at the door of hearth and home,

bent on pillage and plunder. A condominium association’s property

manager and city code inspectors were documenting a code violation in a

condominium common area.

In this case, a picture is worth more than a thousand words. This was

how the situation appeared at the moment when the defendant used the

force that is the subject of her stand your ground motion:

19

As the trial judge wrote, the material “facts are not in dispute.” The

incident was captured on video, which is a part of the record. The video

clearly shows that the victim, a code inspector, remained in the elevator

throughout the incident and never trespassed or attempted to trespass

into the defendant’s condominium unit. The victim presented no threat to

the defendant or her property that would permit the justifiable use of force.

The judge correctly found that there was “no trespass.” After a hearing,

the trial judge wrote that the defendant

was in her home located in L’Hermitage condominium . . .

Defendant received a call from the Property Manager asking if

he, the property manager, and a Code Enforcement

Officer . . . hereinafter “Victim” could come to her unit to look

at the entrance foyer. Defendant told the Property Manager[]

that she was not home, although she was present in the home,

and not to come to her unit. The Property Manager, two Code

Enforcement Officers (including the Victim), and a security

guard from the condominium got into the elevator and

stopped at the 18th Floor in the condominium. The doors to

the elevator opened, the Property Manager, security officer

and the Code Enforcement Officers stayed inside the elevator

and took pictures of the area outside of the elevator. The

Defendant yelled at the occupants of the elevator and threw a

roll of duct tape at the occupants of the elevator and with her

hand struck the hand of the Victim, knocking his phone out

of his hand.

...

20

Each of the State’s witnesses reiterated that no one left the

elevator and no one approached the Defendant in any

manner. There was no trespass, there were no laws being

broken by the “Victim.” The “Victim” in this case was not

committing a forcible felony, he was not engaged in a criminal

activity, and he was in a place that he had a right to be in.

The judge also accepted the proof that the elevator was a common

element of the condominium, as are most elevators in condominiums

throughout South Florida. The assistant property manager testified that

the “foyer” area outside the elevator and before the fire doors was a limited

common element for the resident’s use but belonging to the association.

“Limited common elements” are “common elements which are reserved for

the use of a certain unit or units to the exclusion of all other units, as

specified in the declaration.” § 718.103(19), Fla. Stat. (2020). Thus, a

“limited common element” is still a type of “common element.” “Common

elements,” in turn, are defined as “the portions of the condominium

property not included in the units.” § 718.103(8), Fla. Stat. (2020).

To these facts, I would add that the code enforcement officers were

investigating whether the defendant’s removal of the fire doors at the

entrance to her unit was a code violation. The defendant’s removal of the

doors made the interior of her unit visible from the elevator. She was upset

about the result of her own conduct, which the code enforcement officers

were investigating. Her justification for using force was to prevent the code

enforcement officer from taking pictures of the missing doors.

The Material Facts Reveal No Basis for Stand Your

Ground Immunity

The conduct of one seeking immunity from prosecution must fall within

one of the statutory sections granting immunity. Here, it is obvious that

section 776.012(1) does not apply because the defendant did not face the

“imminent use of unlawful force.” § 776.012(1), Fla. Stat. (2020). 7 Nor

does section 776.013 apply, because the material facts did not

demonstrate that the defendant could “reasonably believe[] that [her]

conduct [was] necessary to defend” herself against anyone’s “imminent use

of unlawful force.” § 776.013(1)(a), Fla. Stat. (2020).

7 Section 776.012(2) is also inapplicable because the defendant did not use

deadly force, nor was she facing the prospect of “imminent death or great bodily

harm” or the “imminent commission of a forcible felony.”

21

This leaves section 776.031(1), upon which the majority relies. By its

terms, the statute does not apply to a person’s defense of her dwelling. As

it applies to this case, the statute allows a person to use force

against another when and to the extent that the person

reasonably believes that such conduct is necessary to prevent

or terminate the other’s trespass on, or other tortious or

criminal interference with, either real property other than a

dwelling or personal property, lawfully in . . . her possession .

...

§ 776.031(1), Fla. Stat. (2020) (emphasis supplied).

Here, the elevator—where the victim remained for the entire incident—

was not “real property other than a dwelling . . . , lawfully in [the

defendant’s] possession.” Thus, because her condominium unit was her

dwelling, 8 the statute comes into play only if the defendant’s conduct was

necessary to prevent the victim’s “trespass on, or other tortious or criminal

interference with . . . personal property.” Id.

Prosser and Keeton identify two torts that apply to personal property,

trespass to chattels and conversion. W. Page Keeton et al., Prosser and

Keeton on Torts (5th ed. 1984). “A trespass to a chattel may be committed

by intentionally (a) dispossessing another of the chattel, or (b) using or

intermeddling with a chattel in the possession of another.” Restatement

(Second) of Torts § 217 (1965). “‘Intermeddling’ means intentionally

bringing about a physical contact with the chattel.” Id. at cmt. e (emphasis

added). And conversion means “an intentional exercise of dominion or

control over a chattel which so seriously interferes with the right of another

to control it that the actor may justly be required to pay the other the full

value of the chattel.” Restatement (Second) of Torts § 222A (1965).

There are various criminal statutes that protect personal property. See,

e.g., § 810.08, Fla. Stat. (2020) (prohibiting trespass in a structure or

conveyance); § 812.014, Fla. Stat. (2020) (prohibiting theft). But none of

these apply to the facts found by the trial judge, because none of the

elevator’s occupants made any move to leave it—the victim was using a

camera to photograph a potential code violation from a common area.

Objectively, the defendant could not have reasonably believed that any

type of physical force was “necessary to prevent or terminate” the victim’s

8 The defendant does not argue in her petition that the foyer area outside the

elevator was “real property other than a dwelling,” lawfully in her possession.

22

“trespass on, or other tortious or criminal interference with, either real

property other than a dwelling or personal property.” § 776.031(1), Fla.

Stat. (2020). Therefore, the immunity statute did not authorize the

defendant to resort to force of any type.

Even though the trial judge erroneously cited to the deadly force statute

in its order, this mere scrivener’s error in the order is not grounds for

granting extraordinary writ relief. The court understood that it was

addressing the use of non-deadly force.

The Majority Opinion Expands Section 776.031(1)

Beyond its Common Law Origins

In a result-oriented exercise of jurisprudence, the majority opinion

holds that the defendant was reasonably using non-deadly force to prevent

or terminate the tortious interference with her property. This holding rests

largely on the victim’s conduct of taking photographs of the interior of the

defendant’s home, including the personal property. 9 The majority’s

analysis represents a sea change in the Chapter 776 statutory law and

600 years of the common law.

Like defenses to common law torts, Stand Your Ground statutes are

directed at preventing actual offensive physical contact or actual physical

trespass or interference with property, not electronic or visual invasions of

privacy.

Recognized since about 1400, the privilege of self-defense “extends to

the use of all reasonable force to prevent any threatened harmful or

offensive bodily contact[.]” Prosser and Keeton, at § 19. For the defense

to apply, a defendant must have at least a reasonable belief that a danger

of physical harm exists. Id. This privilege developed in recognition of

situations where defendants “acted to further an interest of such social

importance that it is entitled to protection[.]” Id. at § 16.

“The privilege to defend the possession of property rests upon the same

considerations of policy as that of self-defense.” Id. at § 21. Defense of

property “is the privilege to resist a trespass, by force which would

otherwise amount to assault, battery or false imprisonment.” Id.

Likewise, section 77 of the Second Restatement of Torts, relied upon by

the majority, “states only the privilege to use force against another for the

9 The majority’s holding also rests on an inaccurate characterization of the facts,

as explained in this dissent.

23

purpose of preventing or terminating the other’s intrusion upon the actor’s

possession of land or chattels.” Restatement (Second) of Torts § 77 cmt. a

(1965) (emphasis added). This section is contained within Chapter 4,

Topic 2, which is entitled: “Defense of Actor’s Interest in His Exclusive

Possession of Land and Chattels.” In short, this section describes an

actor’s right to use force to protect his exclusive possessory interest in

property. While force may be used to protect against even a “harmless

intermeddling” with chattels, the Restatement defines “intermeddling” as

physical contact.

The tort of invasion of privacy, when based on an electronic or visual

invasion rather than a physical one, cannot fairly be categorized as a

tortious interference with property. Rather, such a tort is a privacy tort

intended to protect a person’s interest in seclusion. Here, the victim’s

conduct of taking photographs of the defendant’s personal property was

not a tortious interference with her exclusive possession of the property.

The Stand Your Ground statutes in Chapter 776 are consistent with

the common law’s notion that physical violence is proper to oppose a risk

of actual physical harm to persons and actual physical interference with

property. The statutes authorize the use of force in defense of a person or

home to resist the “imminent use of unlawful force.” §§ 776.012(1),

776.013(1)(a), Fla. Stat. (2020).

Section 776.031, the statute upon which the majority opinion relies,

authorizes the use of force that is “necessary to prevent or terminate the

other’s trespass on, or other tortious or criminal interference with, either

real property other than a dwelling or personal property[.]” § 776.031(1),

Fla. Stat. (2020).

But “a statute will not displace the common law unless the legislature

expressly indicates an intention to do so.” Kitchen v. K–Mart Corp., 697

So. 2d 1200, 1207 (Fla. 1997). “Unless a statute unequivocally states that

it changes the common law, or is so repugnant to the common law that

the two cannot coexist, the statute will not be held to have changed the

common law.” Thornber v. City of Fort Walton Beach, 568 So. 2d 914, 918

(Fla. 1990) (citations omitted). 10

10 According to the majority, “the presumption that a statute only replaces the

common law if it ‘expressly’ says so applies only when the statute abolish[es]

common law rights[.]” The majority cites St. Angelo v. Healthcare and Ret. Corp.

of Am., 824 So. 2d 997, 999 (Fla. 4th DCA 2002), as authority for this proposition.

But nowhere in St. Angelo did we say that the presumption of no change in the

24

Section 776.031 is consistent with the common law notions that force

may be employed to resist the threat of force—actual physical intrusion on

or physical interference with property, such as that occurring in trespass

or conversion. The defendant has not cited any authority that would

permit the use of force to prevent a code officer from documenting a

violation plainly visible from a common area.

The determination of the circumstances when self-help is appropriate

is a question of social policy best left to the legislature. Here, the majority

has usurped the role of the legislature. I shudder to think about the

situations to which the majority opinion will be applied in the future. The

concurring opinion’s attempt to limit the application of the majority

opinion will prove to be ineffective. Good lawyers will always seek to

expand that opinion to their clients’ advantage.

The Majority Opinion Has Not Deferred to the Trial

Court’s Factual Findings

The majority opinion contains facts and legal analysis which are red

herrings immaterial to the issue before us. Most troubling is the majority’s

rewriting of the facts in the light most favorable to the defendant.

We review the trial court’s legal rulings de novo. Wonder, 162 So. 3d

at 62. But “[w]e defer to the circuit court’s factual findings when supported

by competent, substantial evidence.” Id. at 61–62. Significantly, the trial

court’s decision is “clothed with a presumption of correctness and the

[appellate] court must interpret the evidence and reasonable inferences

and deductions derived therefrom in a manner most favorable to

sustaining the trial court’s ruling.” Viera v. State, 163 So. 3d 602, 604

(Fla. 3d DCA 2015) (quoting Terry v. State, 668 So. 2d 954, 958 (Fla.

1996)).

Here, the evidence supports the conclusion that the elevator and foyer

areas were common elements that the property manager had a right to

enter and inspect for safety and code compliance. The condominium

association is the entity “responsible for the operation of common

elements.” § 718.103(2), Fla. Stat. (2020). The elevator and foyer were not

part of the defendant’s unit. Nor did the property manager need to enter

the unit to gain access to these areas. While the evidence showed that the

foyer was a limited common element reserved for the use of the defendant’s

common law “applies only” when a statute abolishes common law rights. Nor

does my analysis “assume[] that our Legislature has abolished a common law

right.”

25

unit “to the exclusion of all other units,” it does not follow that the

defendant had a right to exclude the association from entering the foyer

located outside the defendant’s unit for the purpose of carrying out its

responsibility for the operation of this common element.

Indeed, the property manager had a master key fob providing access to

the elevator and the foyer, which were accessible without entering the

defendant’s home. The victim was present with the property manager’s

permission and was not trespassing. 11

The Majority Opinion Grants Relief on Unargued Grounds

Finally, the majority opinion has granted relief based on an argument

that was not sufficiently raised in the petition to this Court. In particular,

the majority relies upon a novel theory of tortious interference that the

defendant has not clearly advanced in this proceeding.

At bottom, the defendant alleges in her petition that the men were

trespassing into the curtilage of her home when they “opened what serve[d]

as the ‘front door.’” The defendant asserts that she is immune from

prosecution because she “stood her ground against the victim’s unlawful

entry into the curtilage of her private home,” where he took “photographs

of its occupants and interior spaces” after “she had explicitly denied

consent.” In describing the State’s theory of the case, the defendant

mentions in passing that the photographs included pictures of her

personal property. The defendant suggests that the victim violated her

reasonable expectation of privacy under the Fourth Amendment. And the

defendant repeatedly emphasizes the “clear and convincing” standard of

proof required of the State.

11 Even assuming the foyer area was “real property other than a dwelling . . . ,

lawfully in [the defendant’s] possession,” the victim did not enter the foyer area,

and thus did not commit any kind of trespass. The video clearly shows that the

victim stayed within the boundaries of the elevator—the common element—and

he was therefore never trespassing or attempting to trespass. Similarly, it does

not appear from the video that the property manager’s hand ever extended

beyond the elevator door into the foyer area while he was holding the door open

from inside the elevator. But even if it did, this is irrelevant for two reasons: (1)

the property manager had a right to enter the foyer located outside the

defendant’s unit; and (2) this case concerns whether the defendant’s use of force

against the victim—not the property manager—was justified because she

reasonably believed that such conduct was necessary to prevent or terminate the

victim’s “trespass, or other tortious or criminal interference with” her property. §

776.031(1), Fla. Stat. (2020).

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But nowhere in her petition does she advance the amorphous theory of

tortious interference the majority opinion uses to decide this case. Indeed,

her petition does not squarely argue that she reasonably believed her use

of force was necessary to prevent or terminate the victim’s commission of

the tort of invasion of privacy, which is the tort the majority hangs its hat

on. The petition uses the word “tortious” only twice, and one of those

instances occurs in a block quote of section 776.031(1).

To be sure, the defendant’s petition contains a single sentence vaguely

alleging that the State failed to prove by clear and convincing evidence that

she “did not reasonably believe [her] conduct was necessary to prevent or

terminate the trespass, or other tortious or criminal interference, by four

men” who ignored her demands for them to leave and to stop taking

pictures. But the specific argument she advances is that the four men

“committed the crime of trespass into the curtilage” of her home “when

they opened the elevator door with a master security key fob and visually

searched her person and the interior of her home, taking photographs[.]”

Although the petition slings around various Fourth Amendment concepts,

the defendant’s petition boils down to an argument that the open elevator

became part of the curtilage of her home and that the State failed to refute

her justification claim because she reasonably believed the men were

trespassing, giving rise to a presumption that the men had the intent to

commit an unlawful act involving force or violence.

In sum, apart from the defendant’s argument regarding criminal

trespass into the curtilage of her home, the defendant’s petition has not

sufficiently briefed the issue of how she reasonably believed the victim’s

conduct was a “tortious or criminal interference” with “either real property

other than a dwelling or personal property.”

A conclusory assertion fails to sufficiently present an issue for appellate

review. Spanakos v. Hawk Sys., Inc., 362 So. 3d 226, 245 (Fla. 4th DCA

2023). “When points, positions, facts and supporting authorities are

omitted from the brief, a court is entitled to believe that such are waived,

abandoned, or deemed by counsel to be unworthy.” Polyglycoat Corp. v.

Hirsch Distribs., Inc., 442 So. 2d 958, 960 (Fla. 4th DCA 1983). “Claims

for which an appellant has not presented any argument, or for which he

provides only conclusory argument, are insufficiently presented for review

and are waived.” Hammond v. State, 34 So. 3d 58, 59 (Fla. 4th DCA 2010).

It is not this court’s role to rebrief the defendant’s petition. “To take

this step would require us to depart from our role as a neutral tribunal

and to become an advocate by developing arguments that the [petitioner]—

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for whatever reason—has chosen not to make.” Manatee Cnty. Sch. Bd. v.

NationsRent, Inc., 989 So. 2d 23, 25 (Fla. 2d DCA 2008).

The majority opinion has improperly relied upon an alternative theory

to grant relief. See Advanced Chiropractic & Rehab. Ctr. Corp. v. United

Auto Ins. Co., 103 So. 3d 866, 869 (Fla. 4th DCA 2012) (“The tipsy

coachman doctrine does not permit a reviewing court to reverse on an . . .

unargued basis.”); Polyglycoat, 442 So. 2d at 960 (“This Court will not

depart from its dispassionate role and become an advocate by second

guessing counsel and advancing for him theories and defenses which

counsel either intentionally or unintentionally has chosen not to

mention.”); D.H. v. Adept Cmty. Servs., Inc., 271 So. 3d 870, 888 (Fla. 2018)

(Canady, C.J., dissenting) (“This requirement of specific argument and

briefing is one of the most important concepts of the appellate process.

Indeed, it is not the role of the appellate court to act as standby counsel

for the parties.”). The majority has departed from neutrality by crafting an

argument for a party in order to reach a desired result.

Conclusion

Relying upon a tortious interference theory that was not adequately

advanced to this Court, the majority opinion expands the Stand Your

Ground statute in a manner unsupported by the statutory text and our

common law tradition. I respectfully dissent and would deny the petition.

* * *

Not final until disposition of timely filed motion for rehearing.

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