          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
                  _____________________________

                          No. 1D18-2387
                  _____________________________

RICK SCOTT, in his official
capacity as Governor of the
State of Florida, and KEN
DETZNER, in his official capacity
as Secretary of State of the State
of Florida,

    Appellants,

    v.

DAVID P. TROTTI, an individual,

    Appellee.
                  _____________________________


On appeal from the Circuit Court for Leon County.
Charles W. Dodson, Judge.

                           July 26, 2018


ROBERTS, J.

     The appellants, Governor Rick Scott and Secretary of State
Ken Detzner, seek review of an order from the Second Judicial
Circuit granting a motion for a preliminary injunction in favor of
the appellee, David P. Trotti. They argue the circuit court erred in
granting injunctive relief where Mr. Trotti could not demonstrate
a substantial likelihood of success on the merits in light of this
Court’s binding precedent in Trotti v. Detzner, 147 So. 3d 641 (Fla.
1st DCA 2014) (Trotti I). They further argue that Mr. Trotti failed
to demonstrate that the injunction would serve the public interest.
We agree with the appellants and reverse the order on appeal. 1

                                   Facts

      On April 2, 2018, Fourth Judicial Circuit Judge Robert M.
Foster tendered a letter of resignation to Governor Scott conveying
his last day in office would be December 31, 2018, one week (four
business days) before his term would expire on January 7, 2019. 2
Having reached the age of seventy, Judge Foster was only eligible
to finish out his term and could not seek re-election. 3 On April 23,
2018, Governor Scott accepted Judge Foster’s resignation. One
week later, on April 30, 2018, the statutory qualifying period for
election of circuit court judges began. 4 On May 3, 2018, one day
before the qualifying period was to conclude, Mr. Trotti delivered
his qualifying paperwork to run for Judge Foster’s seat. Notably,
Mr. Trotti was the only candidate who submitted qualifying
paperwork for the office of Circuit Judge, Fourth Judicial Circuit,
Group 6. The Division of Elections preliminarily determined Mr.
Trotti was a qualified candidate, but promptly notified Mr. Trotti
that the judicial seat for which he sought to qualify was not a seat
that would be filled by election.

     Mr. Trotti filed a declaratory judgment in the Second Judicial
Circuit Court seeking a declaration that the judicial vacancy at
issue must be filled by election, not appointment. Mr. Trotti also
filed a verified motion for ex parte injunctive relief seeking to
enjoin Governor Scott from filling the judicial vacancy at issue by
appointment and to enjoin Secretary Detzner from removing Mr.
Trotti from the August 28, 2018, election ballot.



    1 Based on our disposition of the case, we find it unnecessary
to address the appellants’ claim that the remedies in the order
exceeded the circuit court’s authority.
    2   § 100.041(4), Fla. Stat. (2018).
    3   Art. V, § 8, Fla. Const.
    4   § 105.031(1), Fla. Stat. (2017).

                                    2
     This familiar fact pattern revives the issue of election versus
appointment that this Court decided less than four years ago in
Trotti I after Mr. Trotti attempted to qualify for another judicial
seat in the Fourth Judicial Circuit, that of Judge Donald R. Moran,
Jr.

                              Trotti I

     In March 2014, Judge Moran tendered a letter of resignation
with an effective date of January 2, 2015, three days (one business
day) before his term would expire on January 5, 2015. On April
10, 2014, Governor Scott accepted the resignation. In the interim,
Mr. Trotti had submitted preliminary paperwork to qualify for the
vacancy, but the statutory qualifying period for the seat did not
begin until April 28, 2014. After Mr. Trotti was informed that the
judicial vacancy would be filled by appointment, he filed an
emergency petition for mandamus relief, which was denied by the
lower court. Trotti I, 147 So. 3d at 642-43.

     We affirmed the order denying mandamus relief, determining
the judicial vacancy occurred when Governor Scott accepted Judge
Moran’s resignation before the commencement of the qualifying
period; therefore, the vacancy had to be filled by appointment. Id.
at 644. We expressly rejected Mr. Trotti’s arguments premised
upon Spector v. Glisson, 305 So. 2d 777 (Fla. 1974), holding,

    Here, the vacancy created by Judge Moran’s resignation
    occurred before the qualifying period, and a physical
    vacancy will occur during his term such that the vacancy
    must be filled by gubernatorial appointment. While the
    dissent may eschew a bright-line test, we cannot engage
    in a determination of what does or does not constitute an
    unreasonable vacancy warranting an appointment. If we
    were to interpret the case law as the dissent suggests and
    find that an election was required here when the election
    process had not yet begun, we would be nullifying the
    Governor’s power of appointment in Article V, section
    11(b), of the Constitution in post-election process
    resignations and pre-election process resignations.
    Stated otherwise, we would be allowing the limited
    exception created by Spector to swallow Article V, section
    11(b), of the Constitution.
                                 3
Id. at 645.

     Mr. Trotti appealed our decision to the Florida Supreme
Court, which denied review. Trotti v. Detzner, 157 So. 3d 1051
(Fla. 2014).

                       The Order on Appeal

     Without distinguishing the facts in the instant case from the
facts in Trotti I, the circuit court disregarded our binding
precedent in Trotti I and granted Mr. Trotti’s preliminary
injunction, effective immediately. 5 This was error for several
reasons.

         The Circuit Court Erred in Granting Injunctive Relief

      A preliminary injunction is an “extraordinary remedy that
should be granted sparingly.” State, Dep’t of Health v. Bayfront
HMA Med. Ctr., LLC, 236 So. 3d 466, 472 (Fla. 1st DCA 2018)
(citing Sch. Bd. of Hernando Cty. v. Rhea, 213 So. 3d 1032, 1040
(Fla. 1st DCA 2017)). To obtain a preliminary injunction, the
movant must prove: (1) a substantial likelihood of success on the
merits, (2) a lack of an adequate remedy at law, (3) the likelihood
of irreparable harm absent the entry of an injunction, and (4) that
injunctive relief will serve the public interest. Id. If the movant
fails to prove any of these requirements, the motion must be
denied. Id.

        Mr. Trotti Did Not Establish a Substantial Likelihood of
                       Success on the Merits

    “A substantial likelihood of success on the merits is shown if
good reasons for anticipating the result are demonstrated. It is not
enough that a merely colorable claim is advanced.” City of


    5  The appellants immediately appealed the preliminary
injunction, triggering the automatic stay provisions of Florida Rule
of Appellate Procedure 9.310(b)(2). The circuit court initially
vacated the stay. We reversed the circuit court’s order and
reinstated the stay. On July 12, 2018, the Florida Supreme Court
entered a constitutional writ lifting our reinstatement of the stay.

                                 4
Jacksonville v. Naegle Outdoor Advertising Co., 634 So. 2d 750, 753
(Fla. 1st DCA 1994). Trotti I is binding precedent that the circuit
court was obligated to follow. Yet, the circuit court, aligning itself
with non-binding unpublished concurring opinions, believed that
this case was controlled by Spector. This was error.

        The Circuit Court was Required to Follow Trotti I

     The circuit court did not find Trotti I distinguishable from the
instant case, nor do we. Mr. Trotti argues that the instant case is
distinguishable because Judge Foster faced mandatory
retirement, thus the vacancy was a “known vacancy” that was
simply waiting to be filled by the election process. Mr. Trotti
argues that Judge Foster’s motives in tendering a letter of
resignation when he faced mandatory retirement were a flagrant
disregard of the election process such that we should be even more
compelled to apply Spector to this case. As we stated in Trotti I,
we decline to engage in an analysis of subjective factors such as
unreasonableness of an impending vacancy or, in this case, Judge
Foster’s motivation to resign.

     Under Mr. Trotti’s logic, and the logic of the dissent in Trotti
I, a reviewing court would have to analyze a resigning judge’s
subjective intent in the hopes of determining whether the
resignation was a matter of political gamesmanship. Is resigning
with five days left in a term gamesmanship? What about two
weeks? Or two months? And what about the judge’s motivation to
resign? Should it matter if the vacancy was created because the
judge wanted to create a vacancy filled by appointment? What if
a vacancy occurred because the judge was going on a cruise or
elected to have a medical procedure? Such an analysis of
subjective factors poses a slippery slope that, in our opinion, is
avoidable under the plain language of the Florida Constitution and
the case law interpreting it.

    The bright-line rule we applied in Trotti I, derived from the
language of the Florida Constitution, allows a reviewing court to
apply neutral principles to evaluate objective facts. See Advisory
Op. to the Gov. Re Appointment or Election of Judges, 983 So. 2d
526, 530 (Fla. 2008) (advocating the “definitive” and “practical”
answer that the election process commenced on a fixed date rather
than a “fluctuating” date that would be based on “variable” factors
                                  5
and would “inject uncertainty” into the process). These neutral
principles will apply no matter who the Governor is or what the
current political climate looks like.

     The opinion in Trotti I is directly on point. When a resignation
is tendered with a future effective date, the vacancy is deemed to
occur when the Governor accepts the resignation. Trotti I, 147 So.
3d at 644 (citing In re Advisory Op. to the Gov. (Judicial
Vacancies), 600 So. 2d 460, 462 (Fla. 1992)). When a circuit court
vacancy occurs before the commencement of the election process,
the Governor shall fill each circuit court vacancy by appointment.
See Trotti I, 147 So. 3d at 643-44; In re Advisory Op. to the Gov. re
Sheriff & Judicial Vacancies Due to Resignations, 928 So. 2d 1218,
1220-21 (Fla. 2006); Art. V, § 11(b), Fla. Const.

     Like the facts in Trotti I, the facts of this case fall under the
bright-line rule:       Governor Scott accepted Judge Foster’s
resignation before the start of the qualifying period; therefore, the
judicial vacancy had to be filled by appointment rather than by
election. Because this Court had already spoken to the issue, the
circuit court erred as a matter of law in failing to following Trotti
I. Trotti I has not been overruled by an en banc opinion from this
Court. Nor has it been overruled by the Florida Supreme Court.
Therefore, it is still binding precedent, and the circuit court was
obligated to follow it. 6 See Pardo v. State, 596 So. 2d 665, 666 (Fla.
1992) (district court decisions are binding on trial courts); Wood v.
Fraser, 677 So. 2d 15, 19 (Fla. 2d DCA 1996) (“Although they are
free to express their disagreement with decisions of higher courts,
trial courts are not free to disregard them in the adjudicatory
process.”) (citing Hernandez v. Garwood, 390 So. 2d 357, 359 (Fla.
1980)). Not only are the circuit courts of the State bound by Trotti
I, this panel is equally bound by our previous opinion. See Taylor


    6  When he initiated the instant lawsuit, Mr. Trotti also filed a
separate petition for injunctive relief in the Fourth Judicial Circuit
to try to halt the process of the Judicial Nominating Commission.
The Fourth Circuit Judge appropriately recognized this Court’s
binding precedent in Trotti I meant that Mr. Trotti was not likely
to succeed on the merits and denied the petition. Mr. Trotti did
not appeal that ruling.

                                  6
Engineering, Inc. v. Dickerson Fla., Inc., 221 So. 3d 719, 723 n.3
(Fla. 1st DCA 2017) (recognizing that a three-judge panel may not
overrule or recede from a prior panel’s ruling on an identical point
of law absent an en banc proceeding) (citing In re Rule 9.331, 416
So. 2d 1127 (Fla. 1982)).

                Pincket is not Controlling Precedent

    Instead of following Trotti I, the circuit court improperly relied
upon dicta from four justices of the Florida Supreme Court in
unpublished concurring opinions in Pincket v. Detzner, 2106 WL
3127704 (Fla. 2016) (Pincket). 7 In Pincket, as in Trotti I, the
Florida Supreme Court denied a petition for writ of mandamus and
recognized the contested judicial office was to be filled by
gubernatorial appointment rather than by election. Id. at *1. In
two concurring opinions, four justices disagreed with our decision
in Trotti I and set out a roadmap for future litigants to file a
declaratory judgment to resolve the issue because Trotti I was the
only law on point such that mandamus was not available. Id. at
*1-*3.

     In granting injunctive relief here, the circuit court felt
compelled to follow the concurring opinions in Pincket, stating,
“[T]he language of four of the justices made it clear that they
believe [Trotti I], as I interpret it, was wrongly decided . . . and that
they believe Spector should control in a case like this.” This was
error as the individual views of justices in unpublished concurring
opinions did not overrule our decision in Trotti I. See Miller v.
State, 980 So. 2d 1092, 1094 (Fla. 2d DCA 2008) (stating
concurring opinions are not precedent and “[o]nly the written,
majority opinion of an appellate court has precedential value”);
Gawker Media, LLC v. Bollea, 170 So. 3d 125, 133 (Fla. 2d DCA
2015) (recognizing unpublished opinions have no precedential
value) (citing Citizens Prop. Ins. Corp. v. Ashe, 50 So. 3d 645, 651
n.3 (Fla. 1st DCA 2010)). Trotti I was, and is, the only controlling



     7The same concurring opinions were also included in the
unpublished opinions in Lambert v. Scott, 2016 WL 3128286 (Fla.
2016), and Boyle v. Detzner, 2016 WL 3128392 (Fla. 2016).

                                   7
law on the issue in this case. Therefore, the circuit court erred as
a matter of law in failing to follow binding precedent.

 Mr. Trotti Did Not Establish That Injunctive Relief Would Serve
                       the Public Interest

     Mr. Trotti strenuously argues that an injunction would serve
the public interest by maintaining primacy of the election process.
We do not disagree with the general principle that the election
process should be used when available. See Spector, 305 So. 2d at
782. However, we cannot ignore that the Florida Constitution
directs the Governor to appoint a successor in situations like the
one before us. See In re Adv. Op. to the Gov. re Judicial Vacancy
Due to Resignation, 42 So. 3d 795, 797 (Fla. 2010) (discussing how
the provisions of article V, section 11(b) and article V, section 10(b)
have been interpreted in harmony via the bright-line rule).

     Mr. Trotti has argued that reversal of the injunction would
deprive the voters of the Fourth Judicial Circuit of an election, but
the practical reality of the remedy he seeks would be a greater
disservice to the public. The circuit court ordered Secretary
Detzner to keep Mr. Trotti on the ballot as a qualified candidate
and to publicly announce that Mr. Trotti qualified as a candidate
for Group 6 of the Fourth Judicial Circuit. As no other prospective
candidates had submitted paperwork to qualify for Judge Foster’s
seat, Mr. Trotti would stand unopposed in the forthcoming election
and would be deemed elected. 8 Mr. Trotti’s proposed remedy
would still disenfranchise the voters of the Fourth Judicial Circuit
and prohibit them from actually choosing Judge Foster’s successor.
Mr. Trotti would then serve a full six-year term as circuit judge,
through January 2025, without his name ever appearing on a
ballot.

    In contrast, under appointment, candidates for Judge Foster’s
seat will have been screened by lawyers and lay members of the
Judicial Nominating Commission. The individual selected by the
Governor would then have to appear at the next general election



    8   § 105.051(1)(a), Fla. Stat. (2018).

                                    8
occurring more than one year after the date of appointment. 9 This
would allow the voters of the Fourth Judicial Circuit to actually
vote to determine who occupies the seat in the general election held
in 2020 rather than the general election held in 2024 if Mr. Trotti
were installed as judge under the circuit court’s injunction.

                              Conclusion

    In our view, allowing for the immediate appointment to fill
Judge Foster’s seat respects the language of the Florida
Constitution. Further, the practical reality of an appointment
would actually preserve the process championed in Spector and
give the voters an earlier opportunity for a true election, as
opposed to an election in name only.

    REVERSED.

WETHERELL and OSTERHAUS, JJ., concur.


                   _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________


Daniel E. Nordby, General Counsel, and Meredith L. Sasso, Chief
Deputy General Counsel, Executive Office of the Governor,
Tallahassee; David A. Fugett, General Counsel, and Jesse C. Dyer,
Assistant General Counsel, Department of State, Tallahassee, for
Appellants.

Robert J. Slama of Robert J. Slama, P.A., Jacksonville; Nicholas A.
James, Jacksonville; Steven L. Brannock and Joseph T. Eagleton
of Brannock & Humphries, Tampa, for Appellee; David P. Trotti,
pro se, of David P. Trotti, P.A., Jacksonville, Appellee.


    9   Art. V, §11(b), Fla. Const.

                                      9
