Post on 21-Aug-2018
Filing # 22406299 E-Filed 01/11/2015 07:08:22 PM
Florida Supreme Court Case No. 15-13LT Case No. 1D14-3320
SUPREME COURT OF FLORIDA
PALM CONSTRUCTION OF WEST FLORIDA
Petitioner,
STATE OF FLORIDA,DEPARTMENT OF FINANCIAL SERVICES
DIVISION OF WORKERS' COMPENSATION
Respondent.
O
PETITIONER'S INITIAL BRIEF ON JURISDICTIONO
UBennett M. Miller
Florida Bar No. 526312Kristian E. Dunn
Florida Bar No. 647678Dunn & Miller, P.A.
215 E. TharpeTallahassee, FL 32303
Attorneys for Petitioner
TABLE OF CONTENTS
TABLE OF CONTENTS.....................................................................i
TABLE OF AUTHORITIES................................................................ii
STATEMENT OF THE CASE AND FACTS.............................................1
JURISDICTIONAL STATEMENT.........................................................2
SUMMARY OF THE ARGUMENT.......................................................3
ARGUMENT..................................................................................3
I. THE FIRST DISTRICT COURT OF APPEAL DECISION UPHOLDINGTHE DENIAL OF RELIEF AFTER THE FAILURE TO ANSWER AREQUEST FOR ADMISSIONS CONFLICTS WITH A RECENT DECISIONOF THE FOURTH DISTRICT COURT OF APPEAL. .............................3
CONCLUSION................................................................................8
CERTIFICATE OF SERVICE................................................................8
CERTIFICATE OF COMPLIANCE........................................................9
APPENDIX ONE............................................................................10
1
TABLE OF CITATIONS
Florida Constitution
Art. V, Section 3(b)(3).......................................................................2
Cases Page(s)
Aravena v. Miami-Dade County, 928 So. 2d 1163 (Fla. 2006)........................2
Crossley v. State, 596 So. 2d 447, 449 (Fla. 1992) ......................................2
Fla. Dep't of Financial Servs. v. Tampa Serv. Co., Inc.884 So. 2d 252, 253 (Fla. 1st DCA 2004) ................................................4
Ford Motor Company v. Kikis, 401 So.2d 1341, 1342 (Fla. 1981).....................2
United Automobile Insurance Company v. West Hollywood Pain &Rehabilitation Center, No. 4D13-2734 (Fla. 4th DCA October 15, 2014).........3, 6
Statutes Page(s)
Florida Statutes 120.57(2)...................................................................5
Rules Page(s)
Fla. R. App. P. 9.030(a)(2)(A)(iv)..........................................................3
Fla. R. Civ. P. 1.370(a)................................................................3, 4, 6
11
STATEMENT OF THE CASE AND FACTS
The Department of Financial Services, Division of Workers' Compensation
("Department") issued a Stop-Work Order and an Amended Order of Penalty
Assessment against the Petitioner, Palm Construction Company of West Florida,
("Palm Construction"), for failure to obtain workers' compensation coverage when
required by law. (Op. at 2). Palm Construction sought an evidentiary hearing and
the matter was referred to the Division of Administrative Hearings. (Op. at 2).
After Palm Construction failed to timely respond to a request for admissions, the
Department filed a Motion to Deem Matters Admitted and to Relinquish
Jurisdiction. ("Motion"). (Op. at 2). The Administrative Law Judge ("ALJ")
granted the motion. (Op. at 2). Later the same day, Palm Construction filed an
emergency motion to reopen the case asserting that the Department's discovery
requests had been answered. (Op. at 2). The ALJ denied the motion stating that the
Division of Administrative Hearings no longer had jurisdiction over the matter
because no material facts remained in dispute. (Op. at 2). The First District Court
of Appeal found that the ALJ properly deemed the matters admitted and correctly
relinquished jurisdiction. (Op. at 3). The First District Court of Appeal also found
that the Division of Administrative Hearings no longer had jurisdiction of the
matter, after the Motion had been granted. (Op. at 3). The First District Court of
Appeal also determined that the Department properly entered a final order which
assessed a penalty of $32,983.04 against Palm Construction. (Op. at 2).
Page 1 of 9
JURISDICTIONAL STATEMENT
The Florida Supreme Court has discretionary jurisdiction to review a
decision of a District Court of Appeal that expressly and directly conflicts with a
decision of another District Court of Appeal on the same point of law. Article V,
Section 3(b)(3) Florida Constitution (1980). Fla. R. App. P. 9.030(a)(2)(A)(iv).
A conflict does not need to be identified in the opinion for it to be considered
"express and direct;" rather it is sufficient that the opinion discusses the legal
principles that it applied to reach its decision. Ford Motor Company v. Kikis, 401
So.2d 1341, 1342 (Fla. 1981) (finding basis for exercise of discretionary
jurisdiction where the district court's opinion discussed the basis upon which it
reversed the trial court's entry of a directed verdict, even though the district court
did not explicitly identify a conflicting decision in the opinion).
Furthermore, an express and direct conflict exists when two decisions are
irreconcilable. Aravena v. Miami-Dade County, 928 So. 2d 1163 (Fla. 2006);
Crossley v. State, 596 So. 2d 447, 449 (Fla. 1992).
Page 2 of 9
SUMMARY OF THE ARGUMENT
The First District Court of Appeal's December 5, 2014 opinion in this case
conflicts with the Fourth District Court of Appeal's October 15, 2014 decision in
United Automobile Insurance Company v. West Hollywood Pain & Rehabilitation
Center, No. 4D13-2734 (Fla. 4th DCA October 15, 2014). The First District Court
ofAppeal ruled that the Petitioner, Palm Construction, was not entitled to relief for
failure to timely answer a request for admissions even though the answer was
tendered two business days after the deadline. The Fourth District Court ofAppeal
ruled that it is an abuse of discretion to deny relief from the failure to answer a
request for admissions where the opposing party cannot show prejudice.
Because the Department in this case cannot show prejudice, the failure to
grant relief to Palm Construction constitutes an irreconcilable difference between
the two cases.
ARGUMENT
I. THE FIRST DISTRICT COURT OF APPEAL UPHOLDING THEDENIAL OF RELIEF AFTER THE FAILURE TO ANSWER A REQUESTFOR ADMISSIONS CONFLICTS WITH A RECENT DECISION OF THEFOURTH DISTRICT COURT OF APPEAL.
A finding by the First District Court ofAppeal that a movant was not entitled
to relief from admissions resulting from a failure to timely respond to a request for
admissions under Fla. R. Civ. P. 1.370(a) expressly and directly conflicts with a
Page 3 of 9
conclusion of the Fourth District Court of Appeal that a similarly situated movant
was entitled to relief.
The opinion of the First District Court of Appeal in the instant matter
reached the conclusion that a response by Palm Construction to a request for
admissions that was returned to the Respondent two business days after the agreed
upon due date was untimely under Fla. R. Civ. P. 1.370(a). (Op. at 3). The opinion
reached the conclusion that because the failure to respond resulted in all of the
matters in dispute being deemed admitted, the Division ofAdministrative Hearings
no longer had jurisdiction. (Op. at 3). The First District Court ofAppeal concluded
that the Petitioner failed to properly document any objections to the relinquishment
of jurisdiction by timely requesting relief with the Department. (Op. at 3). The
opinion reasoned that because no request for relief was made directly to the
Department, thereafter the Department properly entered a final order imposing an
administrative penalty of $32,983.04. (Op. at 3).
The opinion of the First District Court of Appeal in this case relies upon a
previous decision of that court finding that a party was not entitled to relief when
there was a nine month delay in the answering of the requests for admissions. (Op.
at 3), citing Fla. Dep't of Financial Servs. v. Tampa Serv. Co., Inc. 884 So. 2d 252,
253 (Fla. 1st DCA 2004). In Fla. Dep't of Financial Servs., the appellant was
served with a request for admissions, but failed to answer that request more than
nine months after the deadline and thereafter failed to seek relief with the trial
Page 4 of 9
court. The court held that it was proper to grant summary judgment in favor of the
opposing party. I
In the instant case, Palm Construction provided the responses to the request
for admissions two business days after the deadline and twenty-two days before the
granting of the Motion. While the First District Court of Appeal notes that Palm
Construction did not file a response to the Motion, it is also true that the
Department did not withdraw the motion after receiving the answers or admit to
the tribunal that the Department was in possession of the answers before relief was
granted. After the motion was granted, Palm Construction timely sought relief by
filing a motion with the Administrative Law Judge alerting the Administrative Law
Judge of the error. (Op. at 3). The Petitioner provided the Respondent with a copy
of that motion.
The First District Court of Appeal concludes that the motion for relief was
misfiled, because the Division of Administrative Hearings no longer had
jurisdiction. (Op. at 3). Regardless of whether the Division of Administrative
Hearings had relinquished jurisdiction, the Department was on notice that answers
to the request for admissions had been received and there was no prejudice. If the
Division of Administrative Hearings no longer had jurisdiction, then the copy of
the motion provided to the Department by Palm Consrtuction was sufficient to
demonstrate a request for relief from the technical violation of the rules governing
admissions without a need for a formal request for a §120.57(2), Fla. Stat. hearing.
Page 5 of 9
More over, after the filing of the Motion, the Department had attended a
deposition by the Petitioner and filed a Notice of Deposition to schedule the
deposition of another witness. The conduct of the Department demonstrated an
understanding that the answers had been received and the dispute would continue.
In contrast, the Fourth District Court ofAppeal recently decided the case of
United Automobile Insurance Company v. West Hollywood Pain & Rehabilitation
Center, No. 4D13-2734 (Fla. 4th DCA October 15, 2014). United holds that it is an
abuse of discretion for a tribunal to enter an order denying relief to a movant who
failed to timely respond to a request for admissions under Fla. R. Civ. P. 1.370(a),
where the opposing party has not shown prejudice. (United Op. at 2).
In United, the appellant failed to respond to a request for admissions under
Fla. R. Civ. P. 1.370(a) for several weeks. (United Op. at 2). The appellant argued
to the trial court that the mistake was inadvertent. (United Op. at 2). The trial court
denied the motion for relief and thereafter granted a motion for summary
judgment. (United Op. at 2). The Fourth Circuit Court ofAppeal reversed, holding
that despite the lapse of time between the deadline and seeking relief, the movant
was entitled to an adjudication of the case on the merits. (United Op. at 2). The
Fourth Circuit Court ofAppeal reasoned that because the appellee had received the
answers by the time the tribunal took action on the motion for relief and the
appellee had notice of the dispute between the parties while the motion was
Page 6 of 9
pending, it would be a departure from the essential requirements of the law to deny
relief from the admissions. (United Op. at 2 - 3).
In this case, Palm Construction had provided the answers to the Department
by the time the tribunal took action on the motion for relief. The Department had
notice of the dispute between the parties while the motion was pending. The
granting of the Motion had the effect of granting summary judgment for the
Department. Therefore, under the standard set out by the Fourth District Court of
Appeal, it would be a departure from the essential requirements of the law to deny
relief to the Petitioner. The First District Court of Appeal did not reach the same
conclusion.
As demonstrated above, the opinions of the two District Courts of Appeal
are irreconcilable. Therefore, an express and direct conflict exists between the
opinion of the First District Court of Appeal in this case and the decision of the
Fourth District Court of Appeal. As such, the Petitioner requests this Court invoke
discretionary jurisdiction to address and resolve the conflict.
Page 7 of 9
CONCLUSION
For the reasons stated above, Palm Construction respectfully requests that
this Court accept jurisdiction to review the First District Court ofAppeal's decision
below, and thereby allow this Court to consider the merits of Palm Construction's
arguments.
Bennett M. MillerFlorida Bar. No. 526312Dunn & Miller, P.A.215 E. TharpeTallahassee, FL 32303Attorneys for Petitioner(850) 443-4010
CERTIFICATE OF SERVICE
WE HEREBY CERTIFY that a true copy of the foregoing was mailed this
12th day of January, 2015 to all parties on the service list below.
Mr. Alexander BrickCounsel for the RespondentDepartment of Financial Services, Division of Workers' Compensation200 E. Gaines StreetTallahassee, FL 32399
liennett M. MillerFlorida Bar No. 526312
Page 8 of 9
CERTIFICATE OF COMPLIANCE
WE HEREBY CERTIFY that this document complies with the requirements
of Fla. R. App. P. 9.100 (1). This document is being submitted in Times New
Roman 14 point font.
Bennett M. MillerFlorida Bar No. 526312
Page 9 of 9
IN THE DISTRICT COURT OF APPEALFIRST DISTRICT, STATE OF FLORIDA
PALM CONSTRUCTION NOT FINAL UNTIL TIME EXPIRES TOCOMPANY OF WEST FILE MOTION FOR REHEARING ANDFLORIDA, DISPOSITION THEREOF IF FILED
Appellant, CASE NO. 1D13-4847
v.
DEPARTMENT OFFINANCIAL SERVICES,DIVISION OF WORKERS'COMPENSATION,
Appellee.
Opinion filed December 5, 2014.
An appeal from the Department of Financial Services.E. Tanner Holloman, Director.
Kristian E. Dunn and Bennett M. Miller of Dickens & Dunn, P.L., Tallahassee, forAppellant.
Alexander R. Brick, Assistant General Counsel, Tallahassee, for Appellee.
MARSTILLER, J.
In April 2013, the Department of Financial Services, Division of Workers'
Compensation ("Department") issued a Stop-Work Order and an Amended Order
of Penalty Assessment against Appellant, Palm Construction Company of West
Florida, for failing to have workers' compensation coverage, as required by chapter
440, Florida Statutes. Appellant sought an evidentiary administrative hearing
pursuant to sections 120.569 and 120.57(1), Florida Statutes, and the Department
referred the matter to the Division of Administrative Hearings ("DOAH"). But in
July 2013, after Appellant failed to timely respond to discovery requests, the
Department filed a Motion to Deem Matters Admitted and to Relinquish
Jurisdiction. The presiding Administrative Law Judge ("ALJ") granted the motion,
relinquished jurisdiction over the matter to the Department and closed the DOAH
file. The same day, but after the ALJ's order issued, Appellant filed with DOAH
an emergency motion to reopen the case, asserting that the Department's discovery
requests now had been fully answered. The ALJ denied the motion, concluding
DOAH no longer had jurisdiction over the case and stating the Department "is the
authority to whom Respondents' motion should be directed." Thereafter, the
Department entered the final order now on appeal, which assesses a $32,983.04
penalty against Appellant.
Seeking reversal of the order, Appellant argues that the ALJ abused her
discretion by failing to consider the merits of, and hold a hearing on, the
emergency motion to reopen the case. We see no basis for finding an abuse of
discretion, however. Appellant concedes it did not timely respond to the
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Department's discovery requests. Thus the factual matters included in the
Department's request for admissions were deemed admitted. See Fla. R. Civ. P.
1.370(a); Fla. Dep't ofFinancial Servs. v. Tampa Serv. Co., Inc., 884 So. 2d 252,
253 (Fla. 1st DCA 2004). Appellant filed no response to the Department's motion
to deem matters admitted. Therefore, in the apparent absence of remaining
disputed factual issues, the ALJ properly relinquished jurisdiction of the case to the
Department. See § 120.57(1)(i), Fla. Stat. Appellant's subsequent emergency
motion was filed in a tribunal without jurisdiction to consider it; there simply was
no authority for an exercise of discretion by the ALJ.
Appellant also raises issues concerning the sufficiency of the allegations in
the Stop-Work Order and Amended Order Imposing Penalty which serve as the
basis for the penalty assessed, the accuracy of the Department's penalty
calculation, and the propriety of the Department's entering the final order without
giving Appellant an opportunity to be heard. Here, too, we find no basis for
reversal. Nothing in the record shows that, after DOAH relinquished jurisdiction
to the Department, Appellant either entreated the Department to return the matter
to DOAH for an evidentiary hearing or requested a non-evidentiary, or informal,
hearing under section 120.57(2), Florida Statutes, to address the issues now raised
on appeal. Consequently, Appellant failed to preserve them for our review. See
Dep't ofBus. & Prof'l Reg. v. Harden, 10 So. 3d 647, 649 (Fla. 1st DCA 2009)
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