Alex Mistivar v. Broward County Sheriff's Office, et al

OCR transcription; preserved printed pages are authoritative

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT

ALEX MISTIVAR,
Appellant,

Vv.

BROWARD COUNTY SHERIFF’S OFFICE, et al.,
Appellees.

No. 4D2025-0959
[December 17, 2025]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Jeffrey Levenson, Judge; L.T. Case No. CACE25002752.

Alex Mistivar, Roslindale, Massachusetts, pro se.

Colin Tillinghast Hayes, Assistant General Counsel, Office of the
General Counsel, Fort Lauderdale, for appellees Broward County Sheriff’s
Office, Detective Lisa Almanza Londono, and Sergeant Neil Dodge.

No appearance for appellee Broward County.
PER CURIAM.

The plaintiff appeals from the circuit court’s final order granting the
defendants’ motion to declare the plaintiff a vexatious litigant and to
dismiss the case (the “Dismissal Order’).

The defendants’ motion asked the circuit court to dismiss the case due
to the plaintiffs being a vexatious litigant under section 68.093(4), Florida
Statutes (2024), or in the alternative, to order the plaintiff to post security
as authorized by section 68.093(3), Florida Statutes (2024). Citing Welch
v. Inch, 264 So. 3d 383 (Fla. 1st DCA 2019), the defendants argued that
the circuit court did not need to have a hearing before declaring the
plaintiff a vexatious litigant and dismissing the case.

Several hours after the defendants had filed their motion, the plaintiff
filed a response in opposition to this motion. Approximately nine minutes
later, the circuit court entered its Dismissal Order.

The Dismissal Order found that the plaintiff was a vexatious litigant
and, pursuant to section 68.093(4), both dismissed the plaintiff's action
and barred the plaintiff from commencing, pro se, any new action without
first obtaining leave from the administrative judge.

Shortly after the circuit court entered the Dismissal Order, the plaintiff
filed several motions to vacate the order and reopen the case. After a
hearing the following week, the circuit court denied these motions and
ordered that the case remain dismissed.

The circuit court erred in dismissing the action under section
68.093(4). Section 68.093(4)’s plain language authorizes a court to
prohibit a “vexatious litigant from commencing, pro se, any new action in
the courts of that circuit without first obtaining leave of the administrative
judge of that circuit.” § 68.093(4), Fla. Stat. (2024) (emphasis added).
Section 68.093(4) does not authorize a court to dismiss a pending action.
See Walker v. Ellis, 989 So. 2d 1250 (Fla. lst DCA 2008) (reversing the
circuit court’s dismissal of the plaintiff's action because the action was
filed two months before the plaintiffs designation as a vexatious litigant
and prohibition against commencing future actions under section
68.093(4)).

Contrary to the defendants’ assertion, Welch, 264 So. 3d 383, does not
hold otherwise. Welch involved a plaintiff who had voluntarily dismissed
his case, and does not speak to a court’s ability to dismiss an action
without a hearing under section 68.093(4). Rather, Welch found that the
circuit court was not required to hold a hearing on the defendant’s request
that the court: (i) deem the plaintiff a “vexatious litigant” under section
68.093(4), and (ii) order the plaintiff to show cause why he should not be
sanctioned with limitations on his ability to file additional pro se actions.
See id. at 384-85. Welch noted that a hearing is required only if the
defendant moves for the plaintiff to post security under section 68.093(3).
See id. at 384.

Here, the circuit court correctly found that the plaintiff was a vexatious
litigant under section 68.093(4). The defendants established that the
plaintiff had filed six civil cases in the Seventeenth Judicial Circuit in the
preceding five years. Each of these cases was adversely determined
against the plaintiff. As discussed in the preceding paragraph, a hearing
was not required for the court to make this determination. See Welch, 264
So. 3d at 384-85.

Accordingly, we affirm the circuit court’s designation of the plaintiff as
a vexatious litigant under section 68.093(4), but reverse the circuit court’s

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dismissal of the case under section 68.093(4). We remand for further
proceedings consistent with this opinion.

Affirmed in part, reversed in part, and remanded.
KUNTZ, C.J., CIKLIN and SHAW, JJ., concur.

* * *

Not final until disposition of timely-filed motion for rehearing.