### D ISTRICT 

### C OURT 

### O F 

### A PPEAL 

### O F 

### T HE 

### S TATE 

### O F 

### F LORIDA

F OURTH D ISTRICT

B&L SERVICE, INC.
, Appellant,

v.

BROWARD COUNTY, a political subdivision of the State of Florida, and

RASIER

- DC, LLC
, Appellee s

.

No. 4D 19

- 2100

[July 29, 2020 ]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County ; Sandra Perlman , Judge; L.T. Case No. CACE16

- 00 2723(04)

.

Mark J. Stempler of Becker & Poliakoff, P.A., West Palm Beach, for appellant.

Rocio Blanco Garcia of the Broward County Attorney ’s Office

, Fort Lauderdale, for appellee Broward County

.

Alyssa M. Reiter of Wicker Smith O’Hara McCoy & Ford, P.A., Fort Lauderdale, for appellee Rasier

- DC, LLC

.

D AMOORGIAN
, J.

In this public records case, B&L Service, Inc. (“Yellow Cab”) appeals the order denying its motion for attorney’s fees under section 119.12, Florida

Statutes (2016). For the reasons discussed below, we affirm.

Most of the relevant background facts are set forth in Rasier

- DC, LLC v. B&L Service, Inc. ( Rasier I ) , 237 So. 3d 374, 375 (Fla. 4th DCA 2018):

Uber and Broward County entered into a license agreement governing Uber ’ s services at the airport and Port Everglades. Article 2.6.4 of the agreement addressed Uber ’ s monthly

self

- reporting requirements. Article 9.4 required Broward County to maintain the confidentiality of Uber ’ s trade secret2 information and assert its exempt status in response to a public records requ est.

Uber ’ s monthly reports contained both aggregate and granular data. The aggregate data is the number of pickups and drop

- offs at the airport and seaport, “multiplied by the fee

in each of those zones.” The granular data is information on every picku p and drop

- off, including a time stamp, the longitude and latitude, and the first three characters of the

driver ’ s license plate which identifies the individual. Uber marked the reports as containing trade secret information, exempt from the Public Record s Act.

Yellow Cab made a public records request to Broward County for: “All reports or documents reflecting pick

- ups by

Rasier

– DC, LLC or Uber at the [airport], and the sums of money paid or owing to [the county] for those trips, beginning in October, 201 5 and through the present.”

. . . The county responded that any reports marked trade secret would not be

disclosed without Uber ’ s authorization, pursuant to the license agreement, and produced a redacted set.

Yellow Cab then filed a complaint against Bro ward County for violating Florida ’ s Public Records Act, seeking un

- redacted monthly reports on Uber ’ s pickups at the airport. Uber then

moved to intervene as the owner of the trade secret information and real party in interest. The trial court granted

th e motion to intervene.

(alteration s in original) (emphasis in original removed)

.

Following a n evidentiary hearing, the trial court entered a final order

wherein it found that all the redacted information in the reports was protected trade secrets and exempt from disclosure under Florida ’s Public

Records Act. The trial court also expressly found that Broward County

“did not violate the Public Records Act when it refused to disclose unredacted monthly reports in response to a public records request.”

Y ellow Cab thereafter moved for rehearing, arguing the trial court

overlooked that its public records request was limited to the amount of money paid to Broward County and the number of pickups. Accordingly, it sought rehearing for the limited purpose “of obtaining an order that requires disclosure of only the amount paid, or due, to the County, based upon the number of pick

- ups.” The motion did not seek rehearing of the3 trial court’s express ruling in the final order that Broward County did not

violate t he Public Records Act

.

The trial court ultimately granted the motion for rehearing in part, finding that “the aggregate number of pick

- ups and the sum of money paid by [Uber] to the County as a usage fee at the [airport] does not constitute

trade secret i nformation such that it would be exempt from public

disclosure .” The court found the remaining redacted information in the
reports to constitute trade secret s . The r ehearing o rder did not mention or alter the ruling in the f inal o rder that Broward County complied with the Public Records Act. To the contrary, the r ehearing o rder specifically

states the f inal o rder is only “MODIFIED as set forth herein.”

In Rasier I , a ppellee Rasier

- DC, LLC (“Uber ” 1 ) appealed the trial court’s

decision. We affirmed, holding that “the total number of pickups and the fees paid to Broward County do not meet the definition of trade secrets under sections 688.002(4) or 812.081(1)(c), Florida Statutes (2016).”

Rasier I

, 237 So. 3d at 37 7. Importantly, Yellow Cab did not cross

- appeal the trial court’s express ruling in the fi nal o rder that Broward County did

not violate the Public Records Act.

After we issued our mandate in Rasier I , the trial court addressed

Yellow Cab’s pending motio n for attorney’s fees against Broward County
pursuant to section 119.12, Florida Statutes (2016). The trial court denied the motion for two reasons. First, it found that by failing to cross

- appeal

in Rasier I

, Yellow Cab waived the issue of whether Broward County unlawfully refused the records request. Second, relying on our decision in

State Att orney ’s Office of Seventeenth Judicial Circuit v. Cable News Network, Inc. , 254 So. 3d 461 (Fla. 4th DCA 2018), it found that Broward

C ounty’s refusal to produce the unredacted reports could not be unlawful

because it was based on the “ trade secret” exemption contained in section 815.045, Florida Statute s (2016). This appeal follows.

Section 119.12, Florida Statutes (2016), allows for an award of attorney’s fees to a prevailing party who files a civil action against a public agency to enforce Florida’s public records laws. By its terms, section 119.12 only allows for fees “ if the court determines that [the] agency unlawfully refused to permit a public record to be inspected or copied .” Id.

A refusal is unlawful , in turn, “when a court determines that the reason

1 As we explained in Rasier I : “R asier is a subsidiary of Uber Technologies, Inc. It licenses technology from Uber Technologies, Inc., and then licenses it to Uber drivers. While Uber Technologies, Inc., is not a party to the case, Rasier is referred to as Uber for ease of understanding .” Rasier I , 2 37 So. 3d at 375 n.1.4 proffered as a basis to deny a public records request is improper.” Office of State Att ’ y for T hirteenth Judicial Circuit of Fla. v. Gonzalez , 953 So. 2d 759, 764 (Fla. 2d DCA 2007). In other words, a determination that a public agency acted unlawfully for purposes of awarding attorney’s fees is predicated on a finding by the trial court that the a gency violated a provision of the Public Records Act. See Bd. of Trs., Jacksonville Police &

Fire Pension Fund v. Lee , 189 So. 3d 120, 122 (Fla. 2016) (“[W]e hold that a prevailing party is entitled to statutory attorney’s fees under the Public

Records Ac t when the trial court finds that the public agency violated a provision of the Public Records Act in failing to permit a public record to be inspected or copied.”).

With these parameters in mind, Broward County and Uber jointly argue that by failing to c ross

- appeal the trial court’s ruling t hat Broward County

did not violate the Public Records Act in Rasier I , Yellow Cab necessarily waived the issue of whether Broward County unlawfully refused the public records request

. We agree.

“Generally, a cross

- appeal must be filed to challenge an unfavorable portion of a final judgment substantially favorable to the appellee.” Wiccan Religious Coop. of Fla., Inc. v. Zingale , 898 So. 2d 134, 136 (Fla. 1st DCA 2005). If a party fails to cross

- appeal an adverse ruling and the case is remanded, the party is precluded from subsequently challenging that adverse ruling unless the parties consent to the issue being heard. See id.

The holding in Mootry v. Bethune

- Cookman University, Inc. ( Mootry II )

, 279 So. 3d 207 (Fla. 5th DCA 2019)

, is instructive. In that case, a professor sued the university for breach of employment contract. Id. at 208. One of the arguments the professor made in the first trial was that the university failed to comply with the procedures in the faculty

handbook. Id. at 212. The professor lost in the first trial but the appellate

court reversed for a new trial in Mootry v. Bethune

- Cookman University,

Inc. ( Mootry I ) , 186 So. 3d 15 (Fla. 5th DCA 2016). After the second tria l resulted in a verdict for the university, the professor appealed and the

court in Mootry II reversed and remanded for a new trial. Mootry II , 279 So. 3d at 208. Of particular significance, the university cross

- appealed in Mootry II and attempted to challenge “the trial court’s determination, prior to the first trial, that, by their conduct, the parties had made the faculty handbook (or portio ns thereof) part of [the professor’s] employment

contract.” Id. at 211

– 12 . The Mootry II court refused to address the university’s argument, holding that because the university “did not challenge this decision by the trial court in its cross

- appeal in Mo otry I . . . . it has waived its right to challenge that decision in this subsequent appeal.” Id. at 212; see also Philip Morris USA, Inc. v. Naugle , 182 So. 3d5 885 , 886 (Fla. 4th DCA 2016) (holding that by failing to cross

- appeal the comparative fault i ssue in the first appeal, the tobacco company waived the issue in the second appeal).

Here, similar to Mootry , the trial court made an express ruling in the

final order that Broward County did not violate the Public Records Act in initially refusing to pr oduce the unredacted reports. This ruling, which was final in nature and unaltered by the rehearing order, was undoubtedly

unfavorable to Yellow Cab

. By failing to cross

- appeal that unfavorable portion of the final order , Yellow Cab has waived its right to challenge that ruling in this subsequent appeal. As an award of attorney’s fees under section 119.12 is predicated on a finding that the public agency violated a provision of the Public Records Act, Yellow Cab’s argume nt that it is entitled to attorney’s fees under the statute must necessarily fail

. Stated differently, there can be no unlawful refusal in this case in light of the trial court’s unchallenged ruling that Broward County did not violate a provision of the P ublic Records Act.

Affirmed.

F ORST and A RTAU

, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.