         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
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                         No. 1D17-1507
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ERIC A. WELCH,

    Appellant/Cross-Appellee,

    v.

MARK S. INCH, Secretary of
Florida Department of
Corrections, et al.,

    Appellee/Cross-Appellant.
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On appeal from the Circuit Court for Leon County.
Karen Gievers, Judge.

                       February 15, 2019


PER CURIAM.

    After Eric Welch appealed the portion of the circuit court’s
order dismissing his action, the Florida Department of
Corrections filed a cross-appeal of the portion of the order
denying its motion seeking a determination that Welch was a
“vexatious litigant” pursuant to section 68.093, Florida Statutes,
and seeking to sanction him accordingly. 1 Upon this court’s


    1 The motion sought other relief to sanction Welch as well,
but the Department does not challenge the denial of these
requests.
dismissal of Welch’s appeal, the Department’s cross-appeal
remained pending. At issue is the Department’s motion to
declare Welch a “vexatious litigant.”

     In the pertinent part of the motion in question, the
Department and other defendants requested that the circuit
court “declare Mr. Welch a vexatious litigant under section
68.093 and order Welch to show cause why he should not be
sanctioned with limitations on his ability to file pro se matters.”
Welch then filed his notice of dismissal pursuant to rule
1.420(a)(1), Florida Rules of Civil Procedure. 2 The Department
filed its objection to the voluntary dismissal, asserting that it was
a tactic to avoid the sanctions sought by the Department in its
motion. A few days after filing its objection, the Department
obtained a hearing date from the circuit court and prepared and
distributed a notice of hearing on its pending motion.

     Prior to the scheduled hearing, the circuit court entered the
order on appeal. The court acknowledged Welch’s voluntary
dismissal, formally dismissed the case, and summarily denied the
Department and other defendants’ motion for various relief,
including their request for a determination that Welch was a
vexatious litigant under section 68.093.         On appeal, the
Department challenges the circuit court’s summary denial of its
motion, asserting that the court’s entry of the order without
conducting the scheduled hearing violated section 68.093(3). The
Department raises no other basis for reversal other than the
failure to hold a hearing.

    Undoubtedly Welch is vexatious in the colloquial sense. But
the circuit court’s summary denial of the Department’s motion
did not violate the clear language of section 68.093(3), which is
the only section that speaks to a “hearing” in such matters.

    2 Rule 1.420(a) allows a plaintiff to dismiss his or her action
prior to trial without further order of the court. However, the
pending motion for affirmative relief filed by the Department and
other defendants was in the nature of a counterclaim, and could
thus remain pending for independent adjudication by the circuit
court upon the defendant’s objection to dismissal. See Fla. R. Civ.
P. 1.420(a)(2).

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Subsection (3) provides that a defendant, the Department in this
case, “may move the court . . . for an order requiring the plaintiff
to furnish security.” § 68.093(3)(a), Fla. Stat. Upon the filing of a
“motion for an order to post security,” the action is stayed until
the court rules on the motion. § 68.093(3)(d), Fla. Stat. Section
68.093(3)(b) describes “the hearing upon any defendant’s motion
for an order to post security,” requiring the court to consider “any
evidence” relevant to the motion at such hearing.

     The Department’s motion did not seek an order requiring
Welch to furnish or post security – defined in the statute as “an
undertaking by a vexatious litigant to ensure payment to a
defendant in an amount reasonably sufficient to cover the
defendant’s anticipated, reasonable expenses of litigation,
including attorney’s fees and taxable costs.” § 68.093(2)(c), Fla.
Stat. Rather, the Department requested that the court deem
Welch a “vexatious litigant” under the statute and, based on this
designation, order him to show cause why he should not be
sanctioned with limitations on his ability to file additional pro se
actions. In effect, the Department sought relief under subsection
(4) of the statute, which does not speak to the need for a hearing;
in other words, the trial court was entitled to adjudicate the
Department’s motion without a hearing under that subsection.

    The court’s summary denial of this request without a
hearing did not violate any provision of section 68.093 based on
what the Department requested. Since the Department did not
move for Welch to post security—the only potential sanction
under section 68.093(3) for which a hearing may be deemed
necessary—the circuit court did not err by denying the
Department’s motion without holding a hearing.

     The Department sought, pursuant to section 68.093(4) to
prohibit Welch from filing any new action. On appeal, however,
it has not challenged the merits of the denial of its motion under
section 68.093(4)—it has only contested the lack of a hearing.

     Because the circuit court was not required to hold a hearing,
it did not act improperly. Because the Department does not
challenge the merits of the trial court’s order, only the lack of a
hearing, we are constrained to affirm.

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    AFFIRMED.

ROBERTS, MAKAR, and BILBREY, JJ., concur.

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    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
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Eric A. Welch, pro se, Appellant/Cross-Appellee.

Ashley B. Moody, Attorney General, and Anthony Dean Johnson,
Assistant Attorney General, Tallahassee, for Appellee/Cross-
Appellant.




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