Case No. 5D DISTRICT COURT OF APPEAL, STATE OF FLORIDA FIFTH DISTRICT. GEORGE ROSARIO Appellant,

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1 Case No. 5D RECEIVED, 3/2/2017 3:49 PM, Joanne P. Simmons, Fifth District Court of Appeal DISTRICT COURT OF APPEAL, STATE OF FLORIDA FIFTH DISTRICT GEORGE ROSARIO Appellant, v. GLEN C. WILSON AND CITY OF GROVELAND, FLORIDA, Appellees. On appeal from a Non-Final Order of the Circuit Court of the Fifth Judicial Circuit, in and for Lake County, Florida Lower Court Case No CA APPENDIX TO ANSWER BRIEF OF APPELLEE CITY OF GROVELAND, FLORIDA Michael J. Roper, Esq. Dale A. Scott, Esq. John M. Janousek, Esq. BELL & ROPER, P.A East Jefferson Street Orlando, Florida Telephone: Facsimile: Counsel for Appellee City of Groveland, Florida

2 INDEX TO APPENDIX APPENDIX CONTENT PDF PAGE A. Defendant City of Groveland s Motion to Dismiss Plaintiff s Amended Complaint, Quash Alternate Writ in Mandamus, and Dissolve Temporary Injunction... 5 (Filed on January 24, 2017) B. Order Granting Stay (Signed on February 6, 2017) 2

3 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing document has been e-filed via edca and furnished via , pursuant to Fla. R. Jud. Admin. Rule 2.516(b)(1), this 2nd day of March, 2017, to: Derek A. Schroth, Esquire Joan Carlos Wizel, Esquire dschroth@bowenschroth.com jcw@lydeckerdiaz.com ahasselbring@bowenschroth.com dm@lydeckerdiaz.com BOWEN SCHROTH Onier Llopiz, Esquire 600 Jennings Avenue ol@lydeckerdiaz.com Eustis, Florida gcb@lydeckerdiaz.com Troy Beecher, Esquire Attorney for Plaintiff-Petitioner/ tb@lydeckerdiaz.com Appellee Glen C. Wilson LYDECKER DIAZ 1221 Brickell Avenue, 19th Floor Miami, Florida Attorneys for Appellant, George Rosario 3 BELL & ROPER, P.A. /s/ Dale A. Scott Michael J. Roper, Esquire Fla. Bar No Primary mroper@bellroperlaw.com Secondary phermosa@bellroperlaw.com Dale A. Scott, Esquire Fla. Bar No Primary dscott@bellroperlaw.com Secondary bpoole@bellroperlaw.com John M. Janousek, Esquire Fla. Bar No

4 4 Primary Secondary E. Jefferson St. Orlando, FL (telephone) (facsimile) Counsel for Defendant / Appellee

5 Filing # E-Filed 01/24/ :07:40 PM Exhibit "A" IN THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT IN AND FOR LAKE COUNTY, FLORIDA GLEN C. WILSON, v. Plaintiff/Petitioner, Case No.: CA CITY OF GROVELAND, FLORIDA, and GEORGE ROSARIO, Defendants/Respondents. / DEFENDANT CITY OF GROVELAND S MOTION TO DISMISS PLAINTIFF S AMENDED COMPLAINT, QUASH ALTERNATE WRIT IN MANDAMUS, AND DISSOLVE TEMPORARY INJUNCTION Defendant/Respondent City of Groveland ( City ), moves this Court to dismiss the Amended Complaint pursuant to Florida Rules of Civil Procedure 1.140(b) and 1.630(e), for failure to state a cause of action, to quash the Court s Alternate Writ In Mandamus, dated January 4, 2017, pursuant to Rule 1.630(e), and to dissolve the Court s Temporary Injunction, dated January 4, 2017, pursuant to Rule 1.610(d). 1. Introduction On January 4, 2017, Plaintiff Glen C. Wilson initiated the instant action by filing his original two (2) Count Complaint. The action arises out of Plaintiff s allegation that Defendant/Respondent George Rosario, the current Mayor of the City, lacks the necessary qualifications to hold the office of Mayor and should, therefore, be removed from office. Plaintiff alleges Rosario currently holds the office of City Mayor/City Council Member. See Complaint, 2. In 1987, Rosario was allegedly adjudged guilty of a felony in the State of Pennsylvania. Id. at 3, Exhibit A. Plaintiff argues that because of his felony conviction, pursuant to Article VI, Section 4 of the 1

6 Florida Constitution, Rosario is ineligible to hold office in the State of Florida. Plaintiff further alleges Rosario has never had his right to hold public office restored. Id. at 3, 4. Plaintiff claims, pursuant to 3.06 of the City Charter, the City Council has a ministerial duty to declare a forfeiture of office if any council member, such as the City Mayor, lacks any qualification for office prescribed by law. Id. at 7. 1 Plaintiff alleges the City has failed to declare a forfeiture of Rosario s office, and claims he has no adequate remedy at law. Id. at 8 9. Based on these allegations, in his original Complaint, Plaintiff sought an Alternative Writ in Mandamus requiring the City to show cause why a Writ of Mandamus should not be issued to have the City immediately declare a forfeiture of Rosario s office. In Count II, Plaintiff sought a temporary injunction enjoining the City from recognizing the authority of Rosario as Mayor or Councilmember. Plaintiff specifically alleged Rosario took office in November of 2016, and since that time, he has voted in the majority with the City Council on several 3-2 votes regarding significant matters, despite his alleged lack of qualification to hold office. Id. at Plaintiff alleged generally that he has no adequate remedy at law and that he has a substantial likelihood of prevailing on the merits of his claims. Id. at On January 4, 2017, the Court issued an Alternate Writ in Mandamus, incorporating by reference Plaintiff s original Complaint. The Court found the Complaint showed a prima facie case for mandamus relief, noting that the Complaint alleges the City Charter requires the City Council to declare a forfeiture of office if a council member lacks any qualification to hold office and that George Rosario is a convicted felon and not qualified to hold office. The Court ordered the City to, within twenty (20) days, show cause why a Writ of Mandamus requiring the City to 1 The City has attached a copy of 3.06 of the City Charter. The Court may take judicial notice of this document. See , and , Fla. Stat. 2

7 declare a forfeiture of office should not be issued. Also on January 4, 2017, the Court issued a Temporary Injunction. The Court found Rosario is a convicted felon, no evidence has been placed in the record to show Rosario s civil right to hold public office has been restored, Rosario currently holds the office of Mayor/Councilmember for the City, and the City has taken and plans to take municipal action based on Rosario s authority as a public office holder. See Temporary Injunction. Based on these findings of fact, the Court concluded Plaintiff has a substantial likelihood of succeeding on the merits, given the language of Article VI, Section 4 of the Florida Constitution. It also found Plaintiff has no adequate remedy at law to address a violation of Article VI, Section 4. Finally, it also found irreparable harm would likely result absent entry of an injunction and that the injunction would serve the public interest. Accordingly, the Court enjoined the City from recognizing the authority of Rosario as the City s Mayor or as a City Councilmember. Id. On January 9, 2017, Plaintiff filed an Amended Complaint. 2 Therein, Plaintiff generally alleges the same salient facts raised in the original Complaint and relied upon by the Court in its rulings. He reiterated his claims under Counts I and II against the City for mandamus and injunction, basing them on the orders entered by the Court. See Amended Complaint, at Counts I and II. Plaintiff also added Rosario as a Defendant/Respondent to this action. He now brings a new claim for injunction against Rosario (Count III), seeking a temporary injunction to enjoin Rosario from exercising his authority as a public office holder. And, he asserts a new claim for a writ of quo 2 Plaintiff never sought leave of the Court to file this Amended Complaint; however, despite the fact that the Court has issued two Orders based on the original Complaint, pursuant to FLA. R. CIV. P (a), Plaintiff s Amended Complaint appears to be the operative complaint in this action. Pursuant to that Rule, [a] party may amend a pleading once as a matter of course at any time before a responsive pleading is served. Accordingly, the City hereby moves to dismiss Plaintiff s Amended Complaint. However, to the extent that Plaintiff s original Complaint is deemed to be the operative pleading in this matter, the City also moves to dismiss the original Complaint. The allegations in the two pleadings are substantively similar if not identical, and the arguments presented herein apply equally to both pleadings. 3

8 warranto (Count IV), seeking an order requiring Rosario s forfeiture of office and voiding any and all official acts of Rosario, and any and all municipal actions passed pursuant to Council votes passed by Rosario. See id. at Counts III and IV. 2. Relief Sought The City hereby moves to dismiss the Amended Complaint and the Alternate Writ In Mandamus, to quash the Court s Alternate Writ In Mandamus, and to dissolve the Court s Temporary Injunction. As Count III is not directed to the City, the City does not respond to Count III. As discussed below, the City reserves the right to respond to Count IV if and when procedurally appropriate and required. 3. Memorandum of Law a. Standard of Review To rule on a motion to dismiss, a court s gaze is limited to the four corners of the complaint, including the attachments incorporated in it, and all well pleaded allegations are taken as true. Swerdlin v. Fla. Mun. Ins. Trust, 162 So. 3d 96, 97 (Fla. 4th DCA 2014) (quoting U.S. Project Mgmt., Inc. v. Parc Royale E. Dev., Inc., 861 So. 2d 74, 76 (Fla. 4th DCA 2003)). In order to determine the existence of a cause of action, the trial court must examine the complaint s allegations, taken as true, in light of the applicable substantive law. Vienneau v. Metro. Life Ins. Co., 548 So. 2d 856, 858 (Fla. 4th DCA 1989). A complaint must set out the elements of each cause of action and the facts that support them so that the court and defendant(s) can clearly determine what is being alleged. Barrett v. City of Margate, 743 So. 2d 1160, 1162 (Fla. 4th DCA 1999). Whether a plaintiff is represented by an attorney or proceeds pro se, his or her complaint must set forth factual assertions that can be supported by evidence which gives rise to legal liability. Id. at Such assertions must be 4

9 stated simply and succinctly. Id. at It is insufficient to plead opinions, theories, legal conclusions or argument. Id. Similarly, on a motion to quash an alternative writ of mandamus, the allegations in the alternative writ are admitted as true for purposes of consideration of the question before the court. The motion to quash admits all facts well pleaded but challenges the sufficiency of the allegations to warrant the relief prayed. State ex rel. Hendricks v. Thompson, 164 So. 364 (Fla. 1935). Finally, in a motion to dissolve a temporary injunction, challenges to the sufficiency of the injunction are generally not allowed unless the injunction was entered ex parte. Palma Plaza Owners Ass n v. Cummings & Lockwood, 706 So. 2d 1376, 1377 (Fla. 4th DCA 1998). In this case, although attorney Anita Geraci was present on behalf of the City at the initial hearing on January 4, 2017, neither she nor the City were given adequate notice of either the original Complaint or the hearing so as to allow the City sufficient time to develop its arguments in opposition. Accordingly, the City requests leave to assert any and all arguments it may raise to dissolve the injunction. See, e.g., Lockwood, 706 So. 2d at 1377 (finding that, where the hearing on the original injunction was held with improper notice, and no evidence was taken at the hearing, challenges to the sufficiency of an injunction should be allowed on a motion to dissolve). b. Dismissal of Count I and Dismissal/Quashing of Alternate Writ In Mandamus Both Count I of Plaintiff/Petitioner s Amended Complaint, and the Court s corresponding Alternate Writ In Mandamus, should be dismissed and/or quashed as Petitioner failed to sufficiently state a cause of action for a writ of mandamus. Mandamus is defined as a remedy to command performance of a ministerial act that the person deprived has a right to demand, or a remedy where public officials or agencies may be coerced to perform ministerial duties that they have a clear legal duty to perform. RHS Corp. v. City of Boynton Beach, 736 So. 2d 1211,

10 (Fla. 4th DCA 1999) (quoting Town of Manalapan v. Rechler, 674 So. 2d 789, 790 (Fla. 4th DCA 1996)). To state a cause of action for mandamus relief, the complaint must allege the respondent has a clear legal duty to perform a ministerial act, the petitioner has a clear legal right to have the duty performed, and the petitioner does not have another legal remedy available. RHS Corp., 736 So. 2d at 1213; see also Dance v. City of Dania, 114 So. 2d 697, 700 (Fla. 2d DCA 1959) ( The writ of mandamus is predicated on the existence of a clear legal duty imposed by law on the respondent. The pleader must allege the right to the enforcement of the remedy; the duty imposed by law on the respondent; and that the duty is of an imperative, ministerial character, involving no judgment or discretion on the part of the respondent. ). i. Wilson does not allege a clear legal, ministerial duty on the part of the City The City Council s determination as to whether a councilmember lacks any qualification to hold office and, therefore, has forfeited his office, is entirely a discretionary function of the City Council. Section 3.06(b) of the City Charter, titled Forfeiture of office, states that [a] councilmember shall forfeit his office if he lacks at any time during his term of office any qualification for the office prescribed by this Charter or law. Section 3.06(a), titled Vacancies, explains the circumstances under which the office of a councilmember shall become vacant: The office of a councilmember shall become vacant upon... forfeiture of his office, such forfeiture to be declared by the remaining members of the council. Although the City Council s duty under 3.06(a) to declare that a forfeiture has occurred may be ministerial in nature, this duty is only triggered after the City Council has made its discretionary determination that a councilmember has, in fact, forfeited his office. A duty or act is defined as ministerial when there is no room for the exercise of discretion, and the performance being required is directed by law. RHS Corp., 736 So. 2d at 1213 (quoting 6

11 Manalapan, 674 So. 2d at 790). As explained, the Council s duty to declare the existence of a forfeiture is activated only where a councilmember has forfeited his or her office. While the act of making that declaration may, itself, constitute a ministerial duty of the Council under 3.06(a), the Charter does not provide for a clear, ministerial duty by which the Council may make a determination that a councilmember has satisfied the forfeiture conditions under 3.06(b). In particular, it provides no clear, ministerial procedures or duties by which the Council must admit, consider, and review evidence, or the standard of review that the Council must employ to conduct such a review. Likewise, the Charter does not provide for a burden of proof or burden of persuasion for the determination of whether forfeiture has occurred under Section 3.06(b). Nor does it preclude the Council from exercising its discretion to seek additional facts and evidence, prior to making a decision on whether a forfeiture of office has occurred. In short, although Section 3.06(a) appears to impose a ministerial duty on the Council to make a declaration that a forfeiture has occurred, such provision only serves to identity the entity which must make that declaration. It does not serve to impose a clear, ministerial duty on the circumstances under which the Council must find that a forfeiture has occurred, or the evidentiary review and/or hearing procedures/process that the Council must employ so as to make such a determination. To the contrary, those considerations are entirely left to the discretion of the Council. Until the Council has undergone its discretionary review of whether a forfeiture has occurred, its duty to declare that a forfeiture exists is not triggered. In other words, while the act of declaring the existence of a forfeiture may be ministerial in nature, the act of determining that a forfeiture has occurred is left entirely to the discretion of the Council. In this case, there is no allegation that the Council has made a determination that, under 3.06(b), Mayor Rosario lacks a qualification to hold his public office. Until such a discretionary 7

12 determination is made, the Council is under no obligation to declare that a forfeiture exists in accordance with 3.06(a). Therefore, Plaintiff s claim under Count I, and the Court s Alternate Writ In Mandamus, should be dismissed and/or quashed as there is no clear legal right to have the City Council declare that a forfeiture of office exists. ii. Wilson has other legal remedies available Additionally, both Count I and the Court s Alternate Writ In Mandamus should be dismissed and/or quashed as Petitioner has other legal remedies at law to address Rosario s alleged lack of qualification to hold public office. As an initial matter, Plaintiff s allegations at Count I concerning his supposed lack of alternative legal remedies is woefully deficient. Rather than giving any explanation or support, Plaintiff simply states he has no adequate remedy at law. See Amended Complaint, 9. As noted, [i]t is insufficient to plead opinions, theories, legal conclusions or argument. Barrett v. City of Margate, 743 So. 2d 1160, 1163 (Fla. 4th DCA 1999). As Plaintiff s allegation amounts to nothing more than a legal conclusion, it is not sufficient to support a claim for writ of mandamus. Mandamus is not appropriate if there is another adequate remedy. See RHS Corp. v. City of Boynton Beach, 736 So. 2d 1211, 1213 (Fla. 4th DCA 1999). Contrary to Plaintiff s allegations, he has other adequate remedies. In particular, FLA. STAT provides a framework for determining when a public office is deemed vacant under certain circumstances. Under (1)(h), [a] vacancy in office shall occur... [u]pon the failure of a person elected or appointed to office to qualify for office within 30 days from the commencement of the term of office. Under (2), the Governor shall file an executive order with the Secretary of State setting forth the facts which give rise to the vacancy, and he or she shall include in such order the 8

13 title of the office, the name of the incumbent officer or person who held the office, and the date on which the vacancy in office occurred. Applying this provision to the facts alleged in the Amended Complaint, Rosario allegedly took office in November of See Amended Complaint, 12. As of January 24, 2017, more than 30 days will have passed since the commencement of Rosario s term of office. Accordingly, to the extent Plaintiff alleges Rosario has failed to qualify for office due to his alleged felony conviction, Plaintiff may seek redress through a petition to the Governor under Since this legal remedy is clearly available, Plaintiff s Count I for writ of mandamus, and the Court s Alternate Writ In Mandamus, should be dismissed and/or quashed. Furthermore, where a petitioner seeks to determine a person s right to hold and exercise public office, in the absence of statute to the contrary, a petition for writ of quo warranto is the exclusive method for making such a determination. See, e.g., McSween v. State Live Stock Sanitary Bd. of Fla., 122 So. 239, 244 (Fla. 1929) ( The generally accepted and recognized rule is that, in the absence of statutory provision to the contrary, quo warranto proceedings are held to be the only proper remedy in cases in which they are available. Thus they are held to be the exclusive method of determining the right to hold and exercise a public office,... and when the remedy by quo warranto is available, it is held that there is no concurrent remedy in equity, unless by virtue of statutory provision. ) (collecting cases); State ex rel. Booth v. Byington, 168 So. 2d 164, 175 (Fla. 1st DCA 1964) ( Quo warranto is an appropriate and adequate remedy to determine the right of an individual to hold a public office.... Where quo warranto is an adequate remedy, it is the only proper remedy and will preclude issuance of a writ of prohibition as a substitute. ); see also FLA. STAT (explaining quo warranto procedures). 9

14 Plaintiff seemingly acknowledges this in his Amended Complaint as he includes Count IV against Rosario. Since Plaintiff s claim at Count I seeks to determine Rosario s right to hold and exercise the office of Mayor/Councilmember, Plaintiff s exclusive remedy for such a determination is by way of writ of quo warranto. In short, not only does Plaintiff have an adequate remedy at law via a writ of quo warranto, such remedy is his exclusive means of seeking a determination of Rosario s right to public office. Indeed, mandamus is an improper vehicle for determining a person s title to public office. See, e.g., State v. Johnson, 16 So. 786, 789 (Fla. 1895) (noting that [u]pon the application for a mandamus, the court will not go behind the certificate of election, and try the relator s actual title. It is therefore wholly immaterial whether the relator was eligible to the office in question or whether he was duly elected thereto, since to try such issues would be to determine the title upon proceedings in mandamus, damus, which the courts will never do. ) (internal quotations omitted). Accordingly, Plaintiff s claim for a writ of mandamus, and the Court s Alternate Writ In Mandamus, must be dismissed and/or quashed. iii. The Alternate Writ, at a minimum, should be amended so as to clarify and state with particularity the City action the Court may command Finally, as an alternative to dismissal with prejudice, the City respectfully submits the Alternate Writ, at a minimum, should be amended so as to clarify and state with particularity the action the Court may command. It is well settled that great care, particularity, and certainty is required in the mandatory part of the alternative writ, and that it must conform to the case made by the recitals in the writ, and must not require more to be done than is justified by the recitals. State v. Fla. Coast Line Canal & Transp. Co., 75 So. 582, 591 (Fla. 1917). [T]he allegations of the writ must make the abuse clearly to appear, and the commands of the writ should be limited to such particular requirements as will amount to a remedy for the situation complained of, and no more than that. State ex rel. First State Savings Bank of Morenci, Mich. v. Dupuis, 165 So. 66, 10

15 68 (Fla. 1935). It is an elementary rule in mandamus proceedings that every allegation and every command of the writ must be definite and certain. State ex rel. Fieldhouse v. Sewell, 171 So. 298, 301 (Fla. 1936); see also City of Bradenton v. State ex rel. Ben Hur Life Ass n, 165 So. 687, 688 (Fla. 1936) ( It is of course essential that the thing or things to be done be pointed out with definiteness and certainty. ). In this case, the Court s Alternate Writ In Mandamus is not sufficiently definite, certain, and particularized as the Alternate Writ, in its current form, would require the City to look beyond the Alternate Writ to ascertain the precise acts that are required to be performed. In particular, although the Alternate Writ would require the City to declare a forfeiture of Rosario s office, it does not state the manner in which such declaration should or must be effectuated. If effectuated, for example, by way of vote of the Council, it fails to articulate how such declaration may be accomplished in the event of a tie vote of the Council. If, for example, declaration of forfeiture is effectuated by some other decree, the Alternate Writ fails to articulate the procedures under the City Charter, Code, or otherwise that the City must follow in making such decree. In short, it is deficient in that it fails to particularly state the actions which the City and its officials, officers, agents, and/or employees, must take to declare a forfeiture of Rosario s office. Accordingly, as an alternative to dismissal, the Alternate Writ should be quashed and amended to more particularly articulate its mandates. c. Dismissal of Count II and Dismissal/Dissolution of Temporary Injunction Both Count II of the Amended Complaint, and the Court s corresponding Temporary Injunction, should be dismissed and/or dissolved as Plaintiff has failed to sufficiently state a cause of action for injunction. Injunction is a discretionary, equitable remedy. See Plissner v. Goodall 11

16 Rubber Co., 216 So. 2d 228, 229 (Fla. 3d DCA 1968) (suits for injunction are governed by equitable principles); State Road Dep t v. Newhall Drainage Dist., 54 So. 2d 48, 50 (Fla. 1951) ( [T]he matter of granting an injunction rests largely in the discretion of the trial court, to be governed by the facts and circumstances of the particular case. ). It is a drastic and extraordinary remedy that should be granted sparingly and only after the moving party has alleged and proven facts entitling it to relief. See, e.g., Reliance Wholesale, Inc. v. Godfrey, 51 So. 3d 561, 564 (Fla. 3d DCA 2010); Wade v. Brown, 928 So. 2d 1260, 1261 (Fla. 4th DCA 2006). To warrant a temporary injunction, a plaintiff must establish each of the following elements: (1) irreparable harm will result if the temporary injunction is not entered; (2) an adequate remedy at law is unavailable; (3) there is a substantial likelihood of success on the merits; and (4) entry of the temporary injunction will serve the public interest. Citizens for Sunshine, Inc. v. Sch. Bd. of Martin Cnty., 125 So. 3d 184, 187 (Fla. 4th DCA 2013) (quoting Burtoff v. Tauber, 85 So. 3d 1182, 1183 (Fla. 4th DCA 2012)). i. Wilson has other adequate remedies at law available to him Similar to the arguments above, Plaintiff is not entitled to equitable injunctive relief as other adequate remedies at law are clearly available and more appropriate. As noted, Plaintiff may petition the Governor to remove Rosario pursuant to FLA. STAT (1)(h). Furthermore, where a plaintiff may seek relief through a writ of mandamus or quo warranto, as Plaintiff does here, equitable injunctive relief is improper. See City of W. Palm Beach v. Zellar, 107 So. 146 (Fla. 1926) (mandamus); Winter v. Mack, 194 So. 225, (Fla. 1940) (mandamus and equitable relief not appropriate where quo warranto relief is available); State ex rel. Booth v. Byington, 168 So. 2d 164, 175 (Fla. 1st DCA 1964) ( Quo warranto is an appropriate and adequate remedy to determine the right of an individual to hold a public office.... Where quo warranto is an adequate remedy, it is the only proper remedy and will preclude issuance of a writ of prohibition as a 12

17 substitute. ) (emphasis added); see also FLA. STAT (explaining quo warranto procedures). For example, in City of Sunrise v. Town of Davie, 402 So. 2d 1354, 1355 (Fla. 4th DCA 1981), the Town of Davie sought to permanently enjoin the City of Sunrise from enacting an ordinance to annex certain property. The trial court granted a temporary injunction. Id. On appeal, the Court considered whether the trial court abused its discretion. The Court found that Davie failed to establish the unavailability of an adequate remedy at law. Id. Specifically, the Court concluded that [s]ince Davie failed to plead and prove that quo warranto is unavailable, it did not meet an essential requirement for injunctive relief, and, therefore, the trial court abused its discretion. Id. ii. Wilson cannot show a substantial likelihood of success on the merits Plaintiff is unable to satisfy the third element as he does not have a substantial likelihood of success on the merits. As explained, the City does not owe a clear legal, ministerial duty to declare a forfeiture of office if a council member lacks any qualification to hold office. Additionally, Plaintiff has other adequate remedies at law to address Rosario s alleged lack of qualifications to hold public office, including, in particular, a petition to the Governor, or a petition for writ of quo warranto directed specifically at Rosario. Accordingly, Plaintiff does not have a substantial likelihood of success in this case. Since the basis for Plaintiff s requested injunction is Rosario s alleged lack of qualification to hold office, the requested relief in Count II, and the effect of the Court s Temporary Injunction, amounts to an effort to determine Rosario s right to hold and exercise the office of Mayor/Councilmember. Accordingly, Plaintiff s exclusive remedy for such a determination is by way of writ of quo warranto. See McSween, 122 So. at 239. Since Plaintiff has an adequate remedy at law via 13

18 a petition for writ of quo warranto, injunctive relief, which is an equitable remedy, is improper. Therefore, Count II must be dismissed and the Court s Temporary Injunction must be dissolved. iii. Injunctive relief is further unavailable as Wilson seeks to have the Court involve itself in political matters Finally, [t]he rule is well-settled that equity will neither determine questions involving rights that are purely political nor will it undertake the protections of such rights by the writ of injunction. Wexler v. Lepore, 878 So. 2d 1276, 1282 (Fla. 4th DCA 2004); see also Stoner v. S. Peninsula Zoning Comm n, 75 So. 2d 831, 832 (Fla. 1954) (noting that a court of equity should not entertain the injunctive process for the purpose of thwarting a political right); Joughin v. Parks, 147 So. 273, 273 (Fla. 1933) ( A political right has reference to those rights exercised by the citizen in the formation, administration, or conduct of the government.... The right to... be a candidate for and hold office... are among some of the most common political rights.... In jurisdictions recognizing district courts of law and equity like Florida, the rule is well settled that equity is without authority to determine questions involving rights that are purely political, nor will they undertake the protections of such rights by the writ of injunction. ). Since Plaintiff, via the requested injunction, seeks to attack Rosario s title to hold public office, and since such matter involves the determination of a right that is purely political, injunctive relief is wholly inappropriate and unavailable to Plaintiff. For the Court to assume jurisdiction and enforce an injunction attacking Rosario s authority would be tantamount to judicial control over the exercise of political powers, which amounts to an improper invasion of the function of... the domain of the other departments of government. Joughin, 147 So. at 274. As such, Count II of the Amended Complaint must be dismissed, and the Court s Temporary Injunction must be dissolved. 14

19 d. Reservation of Right to Respond to Count IV The issuance of the writ of quo warranto is governed by Rule If the complaint shows a prima facie case for relief, the court shall issue... a writ of quo warranto. FLA. R. CIV. P (d)(3). Therefore, the City is presently under no obligation to respond to Plaintiff s claim for writ of quo warranto unless the Court finds that the Amended Complaint shows a prima facie case for the writ and issues the writ. In that case, the City shall respond to the writ as provided in rule FLA. R. CIV. P (e). To date, the Court has yet to issue a writ of quo warranto or otherwise make a determination as to whether Count IV shows a prima facie case for relief. Accordingly, pursuant to Rule 1.630, the City is under no requirement to respond to Count IV. However, the City respectfully reserves the right to respond to Count IV if and when appropriate and required. The City respectfully reserves the right to assert all responsive arguments as to the vagueness and indefiniteness of Count IV, whether the City is a proper party to Count IV, Wilson s standing to assert Count IV, and all other arguments. 4. Conclusion The City respectfully requests that the Court enter an Order dismissing Plaintiff s Amended Complaint with prejudice, dismissing and quashing the Court s Alternate Writ in Mandamus, and dissolving the Court s Temporary Injunction. Respectfully submitted this 24 th day of January, /s/ John M. Janousek Michael J. Roper, Esquire Florida Bar No.: mroper@bellroperlaw.com phermosa@bellroperlaw.com Dale A. Scott, Esquire Fla. Bar No.: dscott@bellroperlaw.com bpoole@bellroperlaw.com John M. Janousek, Esquire 15

20 16 Florida Bar No.: Bell & Roper, P.A E. Jefferson Street Orlando, FL (407) (407) (fax) Counsel for City of Groveland, Florida

21 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 24 th day of January, 2017, a true and correct copy of the foregoing has been furnished to the Clerk of the Court via the Florida Courts E-Filing Portal, which will transmit copies electronically to all counsel of record. /s/ John M. Janousek John M. Janousek, Esquire Florida Bar No.:

22 Sec Vacancies; forfeiture of office; filling of vacancies. (a) Vacancies. The office of a councilmember shall become vacant upon his death, resignation, removal from office or any manner authorized by law or forfeiture of his office, such forfeiture to be declared by the remaining members of the council. (b) Forfeiture of office. A councilmember shall forfeit his office if he lacks at any time during his term of office any qualification for the office prescribed by this Charter or law. (c) Absenteeism. A councilmember shall forfeit his office if he fails to attend four (4) consecutive regular meetings of the council without being excused by the council. (d) Filling of vacancies. A vacancy in the council shall be filled in one of the following ways: (1) If there are less than six (6) months remaining in the unexpired term or if there are less than six (6) months before the next regular city election, the council by a majority vote of the remaining members shall choose a successor to serve until the newly elected councilmember is qualified. (2) If there are more than six (6) months remaining in the unexpired term and no regular city election is scheduled within six (6) months, the council shall fill the vacancy on an interim basis as provided in [subsection] (1) above, and shall schedule a special election to be held no sooner than sixty (60) days, nor more than ninety (90) days following the occurrence of the vacancy. Notwithstanding any quorum requirements established herein, if at any time the membership of the council is reduced to less than a quorum, the remaining members may by majority vote appoint additional members under either [subsection] (1) or (2) above. (e) Extraordinary vacancies. In the event that all members of the council are removed by death, disability, law or forfeiture of office, the governor shall appoint an interim council that shall call a special election as provided in [subsection] (d) above and such election shall be held in the same manner as the first election under this Charter. State Law reference Provisions relative to filling vacancies required, F.S (6). Page 1

23 IN THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT, IN AND FOR LAKE COUNTY, FLORIDA Exhibit "B" CASE NO.: CA AXXX-XX GLEN C WILSON, Plaintiff(s), VS. CITY OF GROVELAND FLORIDA, GEORGE ROSARIO, Defendant(s), ORDER GRANTING STAY The Defendant, GEORGE ROSARIO, has filed a Motion to Stay Pending Appellate Review. The Plaintiff has now filed an Amended Complaint including Mr. Rosario as a party to this action. Mr. Rosario has filed a Notice of Appeal with the Fifth District Court of Appeal of the Court's prior Orders. The Court notes that the Defendant, CITY OF GROVELAND, has filed a Motion to Dismiss the Amended Complaint with Prejudice even though counsel for the City of Groveland was present when the prior Orders were entered and did not oppose them. The Court believes that in the interest of judicial economy this matter should be stayed until the Fifth District Court of Appeals has had an opportunity to render its Opinion. It is therefore ordered that this entire case is stayed pending final decision of the District Court of Appeals. DONE AND ORDERED in chambers at Tavares, Lake County, Florida on, February 6, Page 1 of 2

24 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to all parties listed below by U. S. Mail on February 6, Michael J. Roper, Esq E. Jefferson Street Orlando, FL Anita Geraci-Carver, Esq Bloxam Ave. Clermont, FL Joan Carlos Wizel, Esq Brickell Ave., 19 th Floor Miami, FL Derek A. Schroth, Esq. 600 Jennings Avenue Eustis, FL Kasey Merlington, Judici ssistant Page 2 of 2