author: VILLANTI, judge.

text:
    Jeffrey A. MESSING, Appellant, v. Karen M. NIERADKA, Appellee.
    Case No. 2D16-2027
    District Court of Appeal of Florida, Second District.
    Opinion filed November 29, 2017

      Robert E. Biasotti of Biasotti Law, St. Petersburg, for Appellant.
    Mark A. Neumaier, Tampa, for Appel-lee.
   VILLANTI, judge.

Jeffrey Messing (the Husband) appeals the, final .judgment of dissolution of his marriage to Karen Nieradka (the Wife). Because the trial court violated the' Husband’s due process rights by converting the final hearing to an evidentiary hearing without notice and then- conducting the final-hearing in the Husband’s absence, we reverse and remand for a new hearing.

The Husband and Wife were married on May-9, 2014. On December 10, 2014, the Husband filed a petition for annulment of the marriage, alleging that the parties had separated immediately after the ceremony,had never -lived together as husband and wife, and had never consummated the marriage in any manner. The Wife' filed a timely answer and counterpetition for annulment, in which she sought to require the Husband to pay certain debts she alleged were marital. Several months later, the Wife filed an amended counterpetition in which she alleged the following:

I do not contest the petition for annulment, but I am concerned that the court might decide we d,o not have grounds for an annulement [sic]. If that is the case, I would then like to proceed directly to dissolution of marriage. I forego my previous claim for any financial reimbursement from Mr. Messing.

..While the relationship between the parties initially, deteriorated, they were later able to resolve at least some of their differences. On September 17, 2015, the Wife filed a “Motion to Enforce Stipulation & Settlement Agreement and Request for Uneontested Hearing.” In the motion, the Wife requested that the court “move forward to uncontested final judgment on the Husband’s Petition for Annulment.”

The Wife’s motion to enforce stipulation was set for hearing on November 18, 2015; however, for reasons not apparent from the record, that hearing did not go forward. Instead, it was rescheduled for January 6, 2016. Again however, for reasons not apparent from the record, the scheduled hearing did not occur. But instead of resetting the motion to enforce for hearing, the- Wife -filed a motion for judgment on the pleadings together with a notice- of final healing, which set the date of. the hearing for March 1,2016.

In anticipation of the noticed final hearing, the Wife filed a'“Stipulation to Final Judgment of Annulment." In this stipulation, the parties agreed that the Husband’s petition for annulment would be granted and that the Wife would pay $1500 toward the Husband’s attorney’s fees. Paragraph five of the stipulation provided:

The Husband can proceed to final hearing on March 1, 2016, without the Wife present pursuant to this Stipulation and the Wife waives appearance at the final hearing but agrees to the Stipulation contained herein and asks that the Court enter a Judgment of Annulment and approve the stipulation herein.

The Wife also filed a waiver of appearance, in which she asked the court to sign a final judgment of annulment at the hearing and provide her with a copy.

At the March 1, 2016, final hearing, counsel for both parties appeared; however, neither party appeared. At the start of the hearing, the trial court sua sponte requested that the attorneys call their clients and request their presence at the hearing. While the Wife’s counsel was able to contact her and she appeared at the hearing, the Husband’s counsel was apparently not able to reach the Husband, and he did not attend. Nevertheless, the trial court went forward with an evidentiary hearing, swearing in the Wife and taking testimony from her. Based solely on the Wife’s testimony, the court rejected the parties’ stipulation to an annulment and, at the Wife’s ore tenus request, proceeded to consider her counterpetition for dissolution. The trial court granted this request and, even though the parties had no stipulation concerning their respective rights in a dissolution action, the court granted a final judgment of dissolution at the conclusion- of the hearing. The Husband now appeals that judgment.

The Husband raises a number of issues concerning the final judgment;- however, we find merit only in his argument that the trial court violated his due process rights in entering the final judgment of dissolution. As the Husband properly points out, once the trial court determined that it could not approve the parties’ stipulation for annulment without taking evidence, the court should have stopped the hearing and ordered the parties to schedule an evidentiary hearing rather than proceeding with an unnoticed ‘ evidentiary hearing that could be attended by only one of the parties.

Florida law holds that “[t]he specific parameters of the notice and the opportunity to be heard required by procedural due process are not evaluated by fixed rules of law, but rather by the requirements of the particular proceeding.” Keys Citizens For Responsible Gov’t, Inc. v. Fla. Keys Aqueduct Auth., 795 So.2d 940, 948 (Fla. 2001). However, in general, “[procedural due process requires both fair notice and a real opportunity to be heard.” Id. (citing Dep’t of Law Enf't v. Real Prop., 588 So.2d 957, 960 (Fla. 1991)); see also Vollmer v. Key Dev. Props., Inc., 966 So.2d 1022, 1027 (Fla. 2d DCA 2007). On the issue of notice, “[t]he notice must be of such nature as reasonably to convey the required information, and it must afford a reasonable time for those interested to make their appearance.” Keys Citizens, 795 So.2d at 948 (quoting Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950)). Hence, the failure to provide a party with adequate notice of the need to be present at a hearing constitutes a violation of due process. See, e.g., Wildwood Props., Inc. v. Archer of Vero Beach, Inc., 621 So.2d 691, 692 (Fla. 4th DCA 1993). So too does the taking of evidence at a hearing.not noticed as an evidentiary .hearing. See Trans Health Mgmt., Inc. v. Nunziata, 159 So.3d 850, 861 (Fla. 2d DCA 2014). Blindsiding a party by announcing on the day of the hearing that the court will entertain evidence at a hearing not noticed as an evi-dentiary hearing is the epitome of a due process violation. See Jackson v. Leon Cty. Elections Canvassing Bd., 204 So.3d 571, 578 (Fla. 1st DCA 2016) (“[T]he opportunity to be heard at an evidentiary hearing requires time to secure the attendance qf witnesses and to prepare for the presentation of evidence and argument.” (quoting Crepage v. City of Lauderhill, 774 So.2d 61, 65 (Fla. 4th DCA 2000) (internal quotation and citation omitted)); see also Wildwood Props., 621 So.2d at 692 n.1 (holding that notice that the court would hear evidence provided on the day of a hearing to an attorney who was seeking to withdraw from representing a party was not adequate to comport with due process). In other words, proper notice of the need to be present and to present evidence is required.

Here, while the Wife filed a notice of final hearing and a motion for judgment on the pleadings, she did not notice the hearing as an evidentiary hearing. The record shows ’that the Wife alsó filed the parties’ stipulation, which jointly requested that the court grant the Husband’s petition-for annulment, along with a waiver of appearance that requested that she be provided with a copy of the final judgment. Nothing about either the notice of hearing or the filed documents put the Husband on notice that the final hearing was going to involve anything other than the trial court’s anticipated acceptance of the parties’ stipulation—and certainly not that the court would decide, sua sporite, to conduct an evidentiary hearing at which the Husband’s presence would be required. Having had no notice of the evidentiary nature of the hearing, the Husband had no opportunity to prepare for the presentation of evidence, and the trial court’s decision to go forward with- the hearing despite this lack of notice constituted a violation of the Husband’s due process rights.

Instead of proceeding as it did, once the trial court determined that it needed to take evidence on the issue of whether an annulment was proper, it should have requested that the parties schedule a properly noticed evidentiary hearing at which the Husband could appear. Further, once the Wife appeared and the court determined from her testimony that it could not honor the parties’ stipulation, the trial court should not have proceeded to decide the case based solely on the Wife’s testimony without giving the Husband a reasonable opportunity to present counterevidence on the issue. The trial court’s decision to reject the parties’ joint stipulation, convert the hearing to an evidentiary one without notice, entertain evidence from the only party—the Wife—who managed to appear despite the lack of notice, and rely solely on that evidence without ever giving the Husband an opportunity to present other evidence was a classic violation of the Husband’s due process rights.

Accordingly, because the trial court violated the Husband’s due process rights, we reverse the final judgment of dissolution and remand for a properly noticed hearing.

Reversed and remanded.

NORTHCUTT and ROTHSTEIN-YOUAKIM, JJ., Concur.


source: Caselaw Access Project

author: ROTHSTEIN-YOUAKIM, Judge.

license: Public Domain

text:
    Shelly L. CHITTIM, Appellant, v. David M. CHITTIM, Appellee.
    Case No. 2D15-4578
    District Court of Appeal of Florida, Second District.
    Opinion filed November 29, 2017

      J. Chad Self, C. Todd Marks,' Kelly M. Albanese, and Kylie M. Caporuscio of Westchase Law, Tampa, for Appellant,
    Elizabeth S. Wheeler and Carl J, Ohall of Berg & Wheeler, P.A., Brandon, for Appellee. .
   BY ORDER OF THE COURT:

The Former Husband’s motion for rehearing is denied. The Former Husband’s motion for clarification is granted. The pri- or opinion dated June 30, 2017 is withdrawn and the attached opinion is issued in its place. No further motions for rehearing will be entertained.

ROTHSTEIN-YOUAKIM, Judge.

In this appeal, Shelly L. Chittim, the Former Wife, challenges the trial court’s postbankruptey denial of her motion for attorneys’ fees and costs, which was based on a prebankruptcy award of attorneys’ fees and costs in her dissolution proceeding. For the reasons set forth in the trial court’s order, we 'agree that the Former Wife’s attorneys, Westchase Law, cannot ■pursue a claim for attorneys’ fees and costs against' either the Former Wife or David M. Chittim, the Former Husband. We disagree, however, that the Former Wife is no longer entitled to the award of attorneys’ fees and costs against the Former Husband that the trial court entered before she declared bankruptcy. Accordingly, we vacate the trial court’s order and remand for a determination of the reasonable attorneys’ fees and costs to which the Former Wife is entitled.

Course of Proceedings

In August 2014, the trial court entered a final judgment of dissolution awarding the Former Wife attorneys’ fees and costs against the ’ Former Husband (the fee award) pursuant to her request under section 61.16, Florida Statutes (2012), and Rosen v. Rosen, 696 So.2d 697, 700 (Fla. 1997); directing the parties to try to agree on the amount of reasonable attorneys’ fees “that the Husband shall pay the Wife”; and reserving jurisdiction in cáse the parties were unable to agree. In September 2014, having received no satisfactory response from the Former Husband, the Former Wife moved for the court to enter an order awarding her reasonable attorneys’ fees and costs. In December 2014, however, she declared bankruptcy, which stayed the determination.

Westchase Law represented the Former Wife in both the dissolution and the bankruptcy proceedings. As part of its agreement to represent her in the dissolution proceeding, Westchase LaW had filed a charging lien against her property. In the bankruptcy proceeding, however, it did not file any claim in connection with its fees and costs in the dissolution proceeding, and the Former Wife did not declare the fee award, either as an asset due to her or as a debt that she owed to Westchase Law, in her bankruptcy petition..

In April 2015, the bankruptcy court granted the Former Wife a discharge under 11 U.S.C. § 727 (2012).

In August 2015, at the direction of the trial court, the parties filed memoranda of law addressing the effect of the bankruptcy proceeding on the fee award. The Former Husband argued that the Former Wife should be judicially estopped from pursuing the fee award against him in light of her failure to include it as an asset on her bankruptcy petition and that, in any event, the fee award should be. zero because the bankruptcy proceeding had discharged the Former Wife’s debt to West-chase Law. The Former Wife argued that judicial estoppel was unwarranted because she had consistently maintained that the fee award was not an asset of the bankruptcy estate, that her bankruptcy proceeding had not discharged the Former Husband’s debt 'to her, that Westchase Law’s lien was enforceable against both her and the Former Husband and could not be discharged in the bankruptcy, and that, in any event, she had reaffirmed her debt to Westchase Law after the bankruptcy had been discharged.

At a hearing before the'trial court ⅛ September 2015, the evidence established that the Former Wife had disclosed the dissolution proceeding to the bankruptcy trustee in her statement of financial affairs and that, before the discharge, the trustee had also found out about the fee award. The trustee testified that after investigating the dissolution proceeding, she had not considered the fee award to be an asset of the estate.

The Former Wife’s expert testified that absent any reaffirmation agreement, the Former Wife’s debt to Westchase Law had been discharged and was uncollectible against.her.'The.expert clarified that the debt still exists but is simply unenforceable by Westchase Law against the Former Wife. Although the Former Wife’s counsel repeatedly asserted that the Former Wife had reaffirmed her debt to Westchase Law, no evidence of any reaffirmation agreement was presented.

The trial court concluded that the Former Wife was not entitled to the fee award because (1) she , was judicially estopped from pursuing the award based on her failure to list it as an asset in her bankruptcy petition and (2) she no longer owed Westchase Law any fees or costs because the bankruptcy had discharged her debt to it and because it had . waived its claim by failing to file proof of the claim in the bankruptcy proceeding. The Former Wife challenges those conclusions on appeal.

'Analysis

“[Jjudicial estoppel ‘is an equitable doctrine invoked by a court at its discretion,’” New Hampshire v. Maine, 532 U.S. 742, 750, 121 S.Ct. 1808, 149 L.Ed.2d 968 (2001) (quoting Russell v. Rolfs, 893 F.2d 1033, 1037 (9th Cir. 1990)). It “prevents litigants from taking inconsistent positions in separate judicial or quasi-judicial proceedings,” Crawford Residences, LLC v. Banco Popular N. Am., 88 So.3d 1017, 1020 (Fla. 2d DCA 2012) (quoting Zeeuw v. BFI Waste Sys. of N. Am., Inc., 997 So.2d 1218, 1220 (Fla. 2d DCA 2008)), and “requires a showing that a litigant successfully maintained a position in one proceeding while taking an inconsistent position in a later proceeding,” id. The purpose of the doctrine is to prevent a- party from “making a mockery of justice by inconsistent pleadings” and from “playing fast and loose with the courts.” Carter v. State, 980 So.2d 473, 484 (Fla. 2008) (first quoting Am. Nat’l Bank v. Fed. Deposit Ins. Corp., 710 F.2d 1528, 1536 (11th Cir.1983); then quoting Russell, 893 F.2d at 1037).

In Slater v. U.S. Steel Corp., 871 F.3d 1174, 1185 (11th Cir. 2017) (en banc), the United States Court of Appeals for the Eleventh Circuit recently addressed the doctrine in the context of a party who fails to identify a pending civil claim as an asset in the bankruptcy proceeding. In that well-reasoned opinion, the Eleventh Circuit en banc retreated from its earlier case law— on which the trial court in this case relied—prescribing an effectively ipso facto approach to determining whether such, a party intended to make a mockery of justice, i.e., the failure to identify the claim evidenced,, in itself, an intent to manipulate the proceedings. The Eleventh Circuit clarified that an evaluation of intent requires consideration of “all the facts and circumstances of the particular case,” including

such factors as the [party’s] level of sophistication, whether and under what circumstances the [party] corrected the disclosures, whether the [party] told his bankruptcy attorney about the civil claims before filing the bankruptcy disclosures, whether the trustee or creditors were aware of the civil lawsuit or claims before the. [party] amended the disclosures, whether the [party] identified other lawsuits to which he was a party, and any findings or actions by the bankruptcy court after the omission was discovered.

Id.'

We are persuaded by the rationale behind Slater and, consistently with that opinion—of which, wé emphasize, the trial court did not have the benefit—we hold that the trial court erred in concluding that the Former Wife should be judicially estopped from pursuing the attorney’s fees award. The Former Wife disclosed, the dissolution proceeding to the bankruptcy trustee, including that attorney’s fees had been awarded. (in • an amount. , yet to be determined) in that proceeding; the trustee informed the Former Wife that the trustee had no -interest in the attorney’s fees; the trustee also informed the.Former! Wife that the trustee had communicated with the Former Husband’s counsel regarding the existence of the fee award in the final judgment and the existence of a charging lien filed by the Former Wife’s attorneys; and the trustee, in fact, took no action with respect to the fee award in the bankruptcy proceeding. The totality of the circumstances, therefore, does not support a finding that .the Former Wife intended to make a mockery of justice or that she was attempting to “play fast and loose with the courts.”

The trial court also erred in concluding that “[t]he Former Wife is not entitled to recover attorneys’ fees because she no longer owes her attorneys any fees or costs.” Although the bankruptcy court discharged all of her prepetition debts, debts discharged in bankruptcy do not cease to exist; they simply become unenforceable. In re Quigley, 391 B.R. 294, 302 (Bankr. N.D.W. Va. 2008) (and cases cited therein); see also 11 U.S.C. § 524 (explaining effect of discharge in bankruptcy proceeding). Similarly, Westchase Law’s failure to file a proof of claim in the bankruptcy proceeding does not waive the Former Wife’s debt to Westchase Law but simply waives Westchase Law’s ability to recover on the debt. See In re Aloia, 496 B.R. 366, 378 (Bankr. E.D. Pa. 2013) (“[Disallowance of a claim owing to a creditor’s failure to file a timely proof of claim does not negate the claim itself. It simply means that the creditor may be unable to receive a distribution from the chapter 7 trustee under 11 U.S.C. § 726.”). In other words, to the extent that the Former Wife owed Westchase Law any fees and costs at the time of the discharge, she still owes them. But unless she reaffirmed the debt—and we- agree with the trial court' that nothing in .the record establishes that she did—West-chase Law cannot collect on it.

Because the trial court erred in concluding that the Former Wife was judicially estopped from pursuing the fee award and was otherwise no longer entitled to do so because she no longer owes her attorneys any fees or costs, we vacate the court’s order on those grounds and remand for a determination of her reasonable attorneys’ fees and costs. The trial court’s order is affirmed in all other respects.

Vacated in part; affirmed in part; remanded with instructions.

CASANUEVA and CRENSHAW, JJ., Concur.

      . In so remanding, we do not foreclose the trial court’s consideration of any equitable factors. See Rosen v. Rosen, 696 So.2d 697, 700 (Fla. 1997) (observing that proceedings under chapter 61, Florida Statutes, "are in equity and governed by basic rules of fairness as opposed to the strict rule of law” (citing § 61.011, Fla. Stat. (1995)).


author: PER CURIAM.

text:
    CAPSTONE BANK, Appellant, v. PERRY-CLIFTON ENTERPRISES, LLC, Christopher L. Richards, John Eric Richards and Christy Richards, Appellees.
    CASE NO. 1D16-1094
    District Court of Appeal of Florida, First District.
    Opinion filed November 30, 2017

      Louis E. Harper, III, T. A. Borowski, Jr., Darryl Steve Traylor, Jr., of Borowski & Traylor, P.A., Pensacola, for Appellant.
    William L. Ketchersid, David L. Powell, of Ward & Ketchersid, P.A., Destín, for Appellee Christy Richards.
   PER CURIAM.

Capstone Bank challenges the trial court’s order finding that an Alabama divorce judgment obtained by former wife Christy Richards constitutes a charging order that has priority over the charging order issued to Capstone Bank in this proceeding, each regarding the former husband’s membership interest in Perry-Clifton Enterprises, LLC, a Florida limited liability company.

A charging order is “a remedy that a creditor of a member in an LLC (or of a partner in a limited partnership) can receive from a court that instincts the entity to give the creditor any distributions that would otherwise be paid to the partner or member from the entity.” Alan S. Gassman, After Olmstead: Will a Multiple-member LLC Continue to Have Charging Order Protection?, 84 Fla. B.J. 10, (December 2010); see also Krauth v. First Cont’l Dev-Con, Inc., 351 So.2d 1106, 1108 (Fla. 4th DCA 1977) (“The charging order is a flexible court-supervised substitute for the more disruptive process of execution by the sheriff.”); Trawick, Fla. Prac. & Proc. § 27:11 (2016-2017 ed.) (“A charging order is the method used to collect a judgment when the judgment debtor has partnership or limited liability company assets.”).

On April 14, 2015, the Circuit Court of Etowah County, Alabama issued a Final Judgment of Divorce (the “Alabama Judgment”) which included reference to the membership interest of the former husband, Christopher Richards, in Perry-Clifton Enterprises, LLC. The Judgment provides that:

In consideration for the property settlement awarded to Christy, Chris shall receive all right, title and interest in and to all business entities (Richard Motors, Inc.; Sunroc Properties, LLC; Economy Auto Mart, LLC; Perry-Clifton Enterprises; etc.), real property, automobiles, motorcycles, boats, aircraft and any future BP settlement proceeds, not otherwise awarded to the wife. However, the property settlement, unpaid alimony, or other financial obligations ordered payable by Chris for the benefit • of Christy shall act as a lien against Chris’ interest in all property awarded to him until paid in full.

The Alabama Judgment stated: “Each party shall execute any and all documents necessary to carry out the intent of this Order.” Christy Richards recorded the Alabama Judgment in the Public Records of Okaloosa County, Florida and filed an affidavit stating that she remained unpaid. She did not seek issuance of a charging order.

On September 22, 2015, the trial court in Okaloosa County, Florida granted Capstone Bank’s motion for a charging order against the membership'interests of Christopher L. Richards and John Erie Richards in’Perry-Clifton Enterprises, LLC. In response, on November 4, 2015, Christy Richards made a motion to intervené and a motion to stay the bank’s charging order. The trial court determined that the Alabama Judgment itself constituted ' a charging, order and was obtained prior to Capstone Bank’s charging order, thereby giving Christy Richards priority in the membership . interest of Christopher' L. Richards in Perry-Clifton Enterprises, LLC.

The question is whether the Alabama Judgment is a de facto charging order under Florida law, such that its entry by the Alabama court before entry of the competing charging order of Capstone Bank grants it priority. We start by noting that under Florida law-a charging order requires application to a court for its issuance. Section 605.0503(1), Florida Statutes (2014)r provides: “On application to a court of competent jurisdiction -by a judgment creditor of a member or a transferee, the court may enter a charging order against the transferable interest of the member or transferee for payment of the unsatisfied amount of the judgment with interest.” (Emphasis-added). This language requires that a judgment creditor must file a motion for a charging order in order for one to be issued. See also Trawick, Fla. Prac. & Proc. § 27:11 (2016-2017 ed.). (citing Fla. R. Civ. P. Rule 1.100(b)) (“The judgment creditor must file a motion for a charging order and allege the judgment, that it has not been paid and the interest that the judgment creditor . seeks to charge,”); Regions Bank v. Alverne Assocs., LLC, 456 S.W.3d 52, 56 (E.D. Mo. 2014) (citing Mo. Rev. Stat. § 347.119 (1993)) (“To obtain a charging order, the judgment creditor must file an ‘application to a court of competent jurisdiction.’”); Jay D. Adkisson, Charging Orders: The Peculiar Mechanism, 61 S.D. L. Rev. 440, 454 (2016) (internal citations omitted) (A charging order “requires that the creditor file a motion for charging order with the court, serve the debtor and often either the LLC, or all its members, and then have a hearing before the court where the merits of the charging order are considered.”).

The need for issuance of a charging order is due to its exclusivity as a remedy in Florida, whose Legislature recently enacted a statute making it clear that “a charging order is the sole and exclusive remedy by which a judgment creditor of a member or member’s transferee may satisfy a judgment from the judgment debt- or’s interest in a limited liability company or rights to distributions from the limited liability company” for multiple-member LLCs, the so-called Olmstead patch. § 605.0503(3), Fla. Stat. (2014) (emphasis added). Accordingly, a judgment lien alone does not amount to a charging order. See Branch Banking and Trust Co. v. Crystal Ctr., LLC, No. 8:15-cv-1462-T-30AAS, 2016 WL 7650655, at *1 (M,D. Fla. December 12, 2016) (stating “the interest held by a member in a limited liability company is not subject to execution under Fla. Stat. § 55.061, and a judgment-creditor must, instead, seek a charging order against such interest”) adopted in part and reversed in part, No. 8:15:cv-1462-T-30AAS, 2017 WL 57345 (M.D. Fla. January 5, 2017).

Here, the language of the Alabama Judgment creates a lien against the membership interest of Christopher Richards in Perry-Clifton Enterprises, LLC, for nonpayment of his obligations therein,' but it does not itself rise to the level of a charging order for which Florida has established a procedure for issuance. • As such, Christy Richards would need to apply for a charging order against the membership interest in Perry-Clifton Enterprises, LLC, which is the “sole and exclusive remedy” available against a limited liability company of this type. § 605.0503(3), Fla. Stat. Because Christy Richards did not obtain a charging order, the trial court erred in concluding that the Alabama Judgment had priority over Capstone Bank’s charging order.

REVERSED.

WOLF, RAY, and MAKAR, JJ., CONCUR.

      . "In response to Olmstead [v. F.T.C., 44 So.3d 76 (Fla. 2010) .the Legislature amended Sec, 608.433, Fla. Stat. [replaced by § 605.0503) to clarify the exclusive remedies available to a judgment creditor as to a judg,ment debtor’s interest in an LLC: a charging order, or a charging order followed by a foreclosure sale.” Regions Bank v. Hyman, No. 8:09-CV-1841-T-17MAP, 2015-WL 1912251, at *1, *7 (M.D. Fla. April 27, 2015), Section 608.433 was repealed in 2015 and became section 605.0503. See Historical and Statutory Notes, § 608.433, Fla, Stat.


author: BILBREY, J.

text:
    SARASOTA COUNTY PUBLIC HOSPITAL DISTRICT d/b/a Sarasota Memorial Hospital and Sarasota Memorial Health Care System, and Lee Memorial Health System and Cape Memorial Hospital, Inc., Appellants, v. FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION, Appellee. The Public Health Trust of Miami-Dade County, Florida, Appellant, v. Agency for Health Care Administration, Appellee. Mount Sinai Medical Center of Florida, Inc., and Shands Jacksonville Medical Center, Inc., d/b/a UF Health Jacksonville, and Baptist Hospital, Inc., and Indian River Memorial Hospital, Inc., d/b/a Indian River Medical Center, and Lakeland Regional Medical Center, Inc., and Shands Teaching Hospital and Clinics, Inc., d/b/a UF Health Shands Hospital, Appellants, v. State of Florida, Agency for Health Care Administration, Appellee. Miami Beach Healthcare Group, Ltd., d/b/a Aventura Hospital and Medical Center; HCA Health Services of Florida, Inc., d/b/a Blake Medical Center; Galencare, Inc., d/b/a Brandon Regional Hospital; Tallahassee Medical Center, Inc., d/b/a Capital Regional Medical Center; Central Florida Regional Hospital, Inc., d/b/a Central Florida Regional Hospital; Citrus Memorial Hospital, Inc., d/b/a Citrus Memorial Hospital; Sarasota Doctors Hospital, Inc., d/b/a Doctors Hospital of Sarasota; Englewood Community Hospital, Inc., d/b/a Englewood Community Hospital; Fawcett Memorial Hospital, Inc., d/b/a Fawcett Memorial Hospital; Fort Walton Beach Medical Center, Inc., d/b/a Fort Walton Beach Medical Center; Bay Hospital, Inc., d/b/a Gulf Coast Medical Center; JFK Medical Center Limited Partnership, d/b/a JFK Medical Center; JFK Medical Center Limited Partnership, d/b/a JFK Medical Center-North Campus; Kendall Healthcare Group, Ltd., d/b/a Kendall Regional Medical Center; Notami Hospitals of Florida, Inc., d/b/a Lake City Medical Center; Largo Medical Center, Inc., d/b/a Largo Medical Center; Largo Medical Center, Inc., d/b/a Largo Medical Center-Indian Rocks; Lawnwood Medical Center, Inc., d/b/a Lawnwood Regional Medical Center & Heart Institute; New Port Richey Hospital, Inc., d/b/a Medical Center of Trinity; New Port Richey Hospital, Inc., d/b/a Medical Center of Trinity West Pasco Campus; Memorial Healthcare Group, Inc., d/b/a Memorial Hospital Jacksonville; West Florida—MHT, LLC, d/b/a Memorial Hospital of Tampa; Plantation General Hospital Limited Partnership, d/b/a Mercy Hospital, a Campus of Plantation General Hospital; North Florida Regional Medical Center, Inc., d/b/a North Florida Regional Medical Center; Galencare, Inc., d/b/a Northside Hospital; Northwest Medical Center, Inc., d/b/a Northwest Medical Center; HCA Health Services of Florida, Inc., d/b/a Oak Hill Hospital; Marion Community Hospital, Inc., d/b/a Ocala Regional Medical Center; Marion Community Hospital, Inc., d/b/a West Marion Community Hospital; Orange Park Medical Center, Inc., d/b/a Orange Park Medical Center; Osceola Regional Hospital, Inc., d/b/a Osceola Regional Medical Center; West Florida—PPH, LLC, d/b/a Palms of Pasadena Hospital; Palms West Hospital Limited Partnership, d/b/a Palms West Hospital; Plantation General Hospital Limited Partnership, d/b/a Plantation General Hospital; Poinciana Medical Center, Inc., d/b/a Poinciana Medical Center; Putnam Community Medical Center of North Florida, LLC, d/b/a Putnam Community Medical Center; Okeechobee Hospital, Inc., d/b/a Raulerson Hospital; HCA Health Services of Florida, Inc., d/b/a Regional Medical Center Bayonet Point; HCA Long Term Health Services of Miami, Inc., d/b/a Sister Emmanuel Hospital; Sun City Hospital, Inc., d/b/a South Bay Hospital; Memorial Healthcare Group, Inc., d/b/a Specialty Hospital Jacksonville; HCA Health Services of Florida, Inc., d/b/a St. Lucie Medical Center; Galen of Florida, Inc., d/b/a St. Petersburg General Hospital; West Florida—TCH, LLC, d/b/a Tampa Community Hospital; Okaloosa Hospital, Inc., d/b/a Twin Cities Hospital; University Hospital, Ltd., d/b/a University Hospital and Medical Center; West Florida Regional Medical Center, Inc., d/b/a West Florida Hospital; and Columbia Hospital Corporation of South Broward, d/b/a Westside Regional Medical Center, Appellants, v. Agency for Health Care Administration, Appellee. St. Vincent’s Medical Center, Inc. d/b/a St. Vincent’s Medical Center Riverside, St. Luke’s-St. Vincent’s Healthcare, Inc. d/b/a St. Vincent’s Medical Center Southside and St. Vincent’s Medical Center-Clay County, Inc. d/b/a St. Vincent’s Medical Center-Clay County, and Sacred Heart Health System, Inc. d/b/a Sacred Heart Hospital of Pensacola, Sacred Heart Hospital on the Emerald Coast and Sacred Heart Hospital on the Gulf, and CGH Hospital, Ltd. d/b/a Coral Gables Hospital, Delray Medical Center, Inc. d/b/a Delray Medical Center, Good Samaritan Medical Center, Inc. d/b/a Good Samaritan Medical Center, Hialeah Hospital, Inc. d/b/a Hialeah Hospital, North Shore Medical Center, Inc. d/b/a North Shore Medical Center, North Shore Medical Center, Inc. d/b/a Florida Medical Center—a Campus of North Shore, Palm Beach Gardens Community Hospital, Inc. d/b/a Palm Beach Gardens Medical Center, Lifemark Hospitals of Florida, Inc. d/b/a Palmetto General Hospital, St. Mary’s Medical Center, Inc. d/b/a St. Mary’s Medical Center and West Boca Medical Center, Inc. d/b/a West Boca Medical Center, Appellants, v. Agency for Health Care Administration, Appellee. Holmes Regional Medical Center, Inc., and Holmes Regional Medical Center, Inc. d/b/a Palm Bay Hospital, and Viera Hospital, Inc., and Cape Canaveral Hospital, Inc., and Hernando HMA, LLC, and Pasco Regional Medical Center, LLC d/b/a Bayfront Health Dade City, and Port Charlotte HMA, LLC d/b/a Bayfront Health-Port Charlotte, and Punta Gorda HMA, LLC d/b/a Bayfront Health-Punta Gorda, and Bayfront HMA Medical Center, LLC d/b/a Bayfront Health-St. Petersburg, and Haines City HMA, LLC d/b/a Heart of Florida Regional Medical Center, and Sebring Hospital Management Associates LLC, d/b/a Highlands Regional Medical Center, and Lake Wales Hospital Corporation d/b/a Lake Wales Medical Center, and Key West HMA, LLC d/b/a Lower Keys Medical Center, and Munroe HMA Hospital, LLC d/b/a Munroe Regional Medical Center, and Naples HMA, LLC, and Crestview Hospital Corporation d/b/a North Okaloosa Medical Center, and HMA Santa Rosa Medical Center, LLC, and Sebastian Hospital, LLC d/b/a Sebastian River Medical Center, and Citrus HMA, LLC d/b/a Seven Rivers Regional Medical Center, and Live Oak HMA, LLC d/b/a Shands Live Oak Regional Medical Center, and Lake Shore HMA, LLC d/b/a Shands Lake Shore Regional Medical Center, and Starke HMA, LLC d/b/a Shands Starke Regional Medical Center, and Osceola SC, LLC d/b/a Saint Cloud Regional Medical Center, and Venice HMA, LLC d/b/a Venice Regional Bayfront Health, and Melbourne HMA, LLC, and Rockledge HMA, LLC, and University Community Hospital, Inc., and Memorial Hospital-West Volusia, Inc., and Southwest Volusia Healthcare Corporation, and Memorial Hospital Flagler, Inc., and Adventist Health System/Sunbelt, Inc., and Memorial Health Systems, Inc., and Southeast Volusia Healthcare Corporation, and Tarpon Springs Hospital Foundation, Inc., and University Community Hospital, Inc., and Florida Hospital Waterman, Inc., and Pasco-Pinellas Hillsborough Community Health System, Inc., and Florida Hospital Zephyrhills, Inc., and Genesis Rehabilitation Hospital, Inc. d/b/a Brooks Rehabilitation Hospital, Inc., and The Villages Tri-County Medical Center, Inc. d/b/a The Villages Regional Hospital, and Leesburg Regional Medical Center, Inc., Appellants, v. Agency for Health Care Administration, Appellee. Larkin Community Hospital, and Martin Memorial Medical Center, and Naples Community Hospital, Inc., and South Lake Hospital, and Larkin Community Hospital Palm Springs Campus, and Orlando Health, Inc., d/b/a Orlando Health, and Southern Baptist Hospital of Florida d/b/a Baptist Medical Center of the Beaches, and Southern Baptist Hospital of Florida d/b/a Baptist Medical Center, Orlando Health Central, Inc. d/b/a Health Central, and Southern Baptist Hospital of Florida d/b/a Baptist Medical Center Nassau, Appellants, v. Agency for Health Care Administration, Appellee.
    CASE NO.: 1D16-5013, CASE NO.: 1D16-5014, CASE NO.: 1D16-5070, CASE NO.: 1D16-5077, CASE NO.: 1D16-5078, CASE NO.: 1D16-5082, CASE NO.: 1D16-5083, CASE NO.: 1D16-5084, CASE NO.: 1D16-5086, CASE NO.: 1D16-5092, CASE NO.: 1D16-5135, CASE NO.: 1D16-5136, CASE NO.: 1D16-5258, CASE NO.: 1D16-5274, CASE NO.: 1D16-5275, CASE NO.: 1D16-5276, CASE NO.: 1D16-5277, CASE NO.: 1D16-5366, CASE NO.: 1D16-5367, CASE NO.: 1D16-5368, CASE NO.: 1D16-5369, CASE NO.: 1D16-5370, CASE NO.: 1D16-5371, CASE NO.: 1D16-5372, CASE NO.: 1D16-5373, CASE NO.: 1D16-5374, CASE NO.: 1D16-5375, CASE NO.: 1D16-5376, CASE NO.: 1D16-5377, CASE NO.: 1D16-5378, CASE NO.: 1D16-5380, CASE NO.: 1D16-5381, CASE NO.: 1D16-5382, CASE NO.: 1D16-5383, CASE NO.: 1D16-5384, CASE NO.: 1D16-5385, CASE NO.: 1D16-5386, CASE NO.: 1D16-5387, CASE NO.: 1D16-5388
    CASE NOS.: 1D16-5427 & 1D16-5429
    CASE NO.: 1D16-5432, CASE NO.: 1D16-5433, CASE NO.: 1D16-5434
    CASE NOS.: 1D16-5435, 1D16-5439 & 1D16-5442
    CASE NO.: 1D16-5436, CASE NO.: 1D16-5437, CASE NO.: 1D16-5438, CASE NO.: 1D16-5440, CASE NO.: 1D16-5441, CASE NO.: 1D16-5443, CASE NO.: 1D16-5444, CASE NO.: 1D16-5453, CASE NO.: 1D16-5454, CASE NO.: 1D16-5455, CASE NO.: 1D16-5469, CASE NO.: 1D16-5470, CASE NO.: 1D16-5471, CASE NO.: 1D16-5472, CASE NO.: 1D16-5473, CASE NO.: 1D16-5474, CASE NO.: 1D16-5475, CASE NO.: 1D16-5476, CASE NO.: 1D16-5477, CASE NO.: 1D16-5478

      District Court of Appeal of Florida, First District.
    Opinion filed November 30, 2017

      Lawrence J. Hamilton II, Jacksonville, and Tiffany A. Roddenberry, Tallahassee, of Holland & Knight LLP, for Appellants.
    Joseph M. Goldstein and Dan P. Daley, Fort Lauderdale, Stephen T. Maher, Miami, Daniel E. Nordby and Amber Stoner, Tallahassee, of Shutts & Bowen LLP; Stefan R. Grow, General Counsel, and Tracy Cooper George, Chief Appellate Counsel for Florida Agency for Health Care Administration, Tallahassee, for Appellee.
    Christopher Charles Kokoruda, Laura E. Wade, and Abigail Price-Williams, Miami-Dade County Attorneys, Miami, for Appellant.
    Joseph M. Goldstein and Dan P. Daley, Fort Lauderdale, Stephen T. Maher, Miami, Daniel E. Nordby and Amber Stoner, Tallahassee, of Shutts & Bowen LLP; Stefan R. Grow, General Counsel, and Tracy Cooper George, Chief Appellate Counsel for Agency for Health Care Administration, Tallahassee, for Appellee.
    Seann M. Frazier and Marc Ito, Tallahassee, and Jonathan L. Rue, Atlanta, Georgia, of Parker, Hudson, Ranier & Dobbs, for Appellants.
    Joseph M. Goldstein and Dan P. Daley, Fort Lauderdale, Stephen T. Maher, Miami, Daniel E. Nordby and Amber Stoner, Tallahassee, of Shutts & Bowen LLP; Stefan R. Grow, General Counsel, and Tracy Cooper George, Chief Appellate Counsel for State of Florida, Agency for Health Care Administration, Tallahassee, for Ap-pellee.
    Stephen A. Ecenia, David M. Maloney, J. Stephen Menton, and Gabriel F. V. Warren of Rutledge Ecenia, Tallahassee, for Appellants.
    Joseph M. Goldstein and Dan P. Daley, Fort Lauderdale, Stephen T. Maher, Miami, Daniel E.-Nordby and Amber Stoner, Tallahassee, of Shutts & Bowen LLP; Stefan R. Grow, General Counsel, and Tracy Cooper George, Chief Appellate Counsel for State of Florida, Agency for Health Care Administration, Tallahassee, for Ap-pellee.
    Michael J. Glazer and E. Dylan Rivers of Ausley McMullen, Tallahassee, for Appellants.
    Joseph M. Goldstein and Dan P. Daley, Fort Lauderdale, Stephen T. Maher, Miami, Daniel E. Nordby and Amber Stoner, Tallahassee, of Shutts & Bowen LLP; Stefan R. Grow, General Counsel, and Tracy Cooper George, Chief Appellate Counsel for State of Florida, Agency for Health Care Administration, Tallahassee, for Ap-pellee.
    Kyle L. Kemper and Steven Mindlin of Sunstrom & Mindlin, LLP, Tallahassee, for Appellants.
    Joseph M. Goldstein and Dan P. Daley, Fort Lauderdale, Stephen T. Maher, Miami, Daniel E. Nordby and Amber Stoner, Tallahassee, of Shutts <& Bowen LLP; Stefan R. Grow, General Counsel, and Tracy Cooper George, Chief Appellate Counsel for Florida Agency for Health Care Administration, Tallahassee, for Appellee.
    Joanne B. Erde and Donna Holshouser Stinson of Duane Morris LLP, Miami, for Appellants.
    Joseph M. Goldstein and Dan P. Daley, Fort Lauderdale, Stephen T. Maher, Miami, Daniel E. Nordby and Amber Stoner, Tallahassee, of Shutts & Bowen LLP; Stefan R. Grow, General Counsel, and Tracy Cooper George, Chief Appellate Counsel for Florida Agency for Health Care Administration, Tallahassee, for Appellee-.
   BILBREY, J.

Sixty-seven Petitioners sought administrative hearings ■ pursuant to section 120.57(1), Florida Statutes (2016), after the Agency for Health Care Administration (AHCA) announced its-rates ;of reimbursement of Medicaid funds for services provided by hospitals for outpatient services for the 2016-2017 fiscal year. ACHA initially sought to dismiss the petitions as premature. Thereafter, AHCA argued the petitions were moot, for reasons which will be more fully set forth below. Eventually, the petitions were dismissed by identical orders. This consolidated appeal follows. We reverse and remand.

As this is an appeal of an order of dismissal, we must accept as true the allegations made in the petitions filed below. See Herbits v. Bd. of Trs. of Internal Improvement Trust Fund, 195 So.3d 1149, 1153 (Fla. 1st DCA 2016). The Amended Petition for Sarasota County Hospital Dis--trict, the lead Appellant in this consolidated appeal, alleged in pertinent part:

7. For Fiscal Year 2016-17, the Legislature passed zero outpatient rate reductions and appropriated sufficient funds to reimburse Sarasota Memorial at a rate that is substantially higher than [AHCA’s] posted reimbursement rates. The level of funding made available by the Legislature meant that AHCA was not required' to make any outpatient reimbursement rate reductions beyond certain standing rate cuts. However, on its own initiative, AHCA elected to implement drastic rate reductions for Fiscal Year. 2016-17 far beyond those authorized by the Legislature, resulting in a significant reduction of funding to Sarasota Memorial for Medicaid outpatient services.
8. [In the] rate letter applicable to Sarasota Memorial ,,. though the Fiscal Year 2016-17 rates were not posted by AHCA until July 11, 2016 and then again revised and republished on August 10, 2016, AHCA has indicated that they took effect for all Medicaid outpatient ■hospital service providers on July 1, 2016. The hospital reimbursement rates released by AHCA reflect a significantly higher rate cut from previous years.
10. By way of background, as part of a recent overhaul of the state’s Medicaid program, the Legislature mandated that AHCA'implement a new statewide program to enroll the majority of Florida’s Medicaid beneficiaries in Medicaid managed care plans. See § 409.971, Fla. Stat. Implementation of this Medicaid managed care program resulted in a dramatic shift of Florida’s Medicaid beneficiaries—as-well’ as -state funding— from [fee for sex-vices programs or “FFS”] to managed care. Consequently, there has been a substantial reduction in the number of Medicaid FFS claims.

Sarasota County further alleged that as a Medicaid provider of outpatient services, it will be paid using the challenged rates and that these rates are severely reduced from those of previous years; thus, its substantial interests are affected, it hai3 alleged. The rates “took effect for all Medicaid outpatient hospital sex-vice providers on July 1, 2016,” it also alleged. The arguments made by the other Petitioners in their respective petitions are substantially the same as those made by Sarasota County Hospital District.

AHCA moved to dismiss the petitions on the ground that the rates of reimbursement were not “final agency action,” and thus, the requested administrative proceeding was premature. ACHA' asserted that only after it had audited the requested reimbursements, which woüld be filed in the future, would final agency action have occurred. As authority for this argument,. AHCA cited section 409.908(l)(f)l., Florida Statutes (2016), AHCA argued below and continues to argue here that this statute, gives a meaningful point of entry upon the release of audited rates and to allow an earlier point of entry would render the statute meaningless.

The Petitioners opposed dismissal by AHCA arguing that section 409.908(l)(f)l. did not preclude a challenge on the rates prior to auditing. The Petitioners claimed AHCA’s position could result in a denial of a meaningful point of entry to challenge the rates established. Petitioners maintain that argument here.

AHCA filed a Suggestion of Mootness on Nov. 3, 2016, arguing that per section 409.905(6)(b)l., Florida Statutes (2016), the pending petitions were moot. This statute provides that “[ajdjustments may not be made [to unaudited reimbursement] rates after October 31 of the state fiscal year in which the rates take effect....” In its Suggestion of Mootness, AHCA added, without citing specific authority, that “this is the last year that [it] will issue preliminary rates, AHCA [thus] has lost authority under the statute to make further adjustments going forward.”

By Final Order dated Nov. 4, 2016, ACHA dismissed' the amended petitions with prejudice. AHCA held in pertinent part:

[S]ection 409.908(l)(f)l, Florida Statutes, gives a provider a point of entry “to correct or adjust the calculation of the audited hospital cost-based per diem reimbursement rate for' inpatient and outpatient care.”'(Emphasis added). Section 409.908(1), Florida Statutes, does not allow a provider like Petitioners] to challenge unaudited rates. This is because unaudited rates are preliminary in nature," and subject to change once the Agency has audited Petitioners’] cost report.
* # *
Furthermore, even assuming arguen-do Petitioners are entitled to challenge 'the unaudited rates as a substantially affected party under chapter 120,' Florida Statutes, the Agency lacks the jurisdiction and authority to grant Petitioners the relief, they seek, i.e. the adjustment of their rates. Section 409.905(6)(b)l., Florida Statutes, prohibits the , Agency .from making any adjustments to Petitioners’ rates “after October 31 of the state fiscal year in which- the rates- take effect....” For the- rates .at issue, this, date has already passed. Accordingly, the Agency must dismiss the Amended Petition because .Petitioners are not entitled to an administrative hearing to dispute the unaudited rates and,' even if they were, the Agency lacks the jurisdiction .and authority to grant Petitioners the relief they seek.

(Footnotes omitted; emphasis in original),

As indicated, following the dismissal of a petition for an administrative hearing, a reviewing court must accept the allegations of the petition as true. See Her-bits. Moreover, questions -of statutory interpretation are reviewed by the appellate court de novo. See Raymond James Fin. Servs., Inc. v. Phillips, 126 So.3d 186 (Fla. 2013); Maggio v. Fla. Dep’t of Labor & Emp’t Sec., 899 So.2d 1074 (Fla. 2005).

As this court explained almost 30 years ago, a party has standing to initiate a formal administrative hearing pursuant to section 120.57 when it has a “substantial interest that is directly affected by proposed agency action....” Florida Soc'y of Ophthalmology v. State Bd. of Optometry, 532 So.2d 1279, 1284 (Fla. 1st DCA 1988). But, as this court later made clear, “[t]o be entitled to a section 120.57 hearing, there must be final agency action affecting the petitioner’s substantial interests, coupled with a disputed issue of material fact.” Friends of the Hatchineha, Inc. v. State, Dep’t of Envtl. Reg., 580 So.2d 267, 269 (Fla. 1st DCA 1991) (quoting General Dev. Utils., Inc. v. Florida Dep’t of Envtl. Reg., 417 So.2d 1068, 1070 (Fla. 1st DCA 1982)).

As noted, AHCA has claimed that final agency action has not occurred simply by the posting of the unaudited rates. It does not argue that the substantial interests of the various petitioners have not been affected. Nor has the agency claimed that there are no disputed issues of material fact, a prerequisite for a hearing under section 120.57(1).

Section 409.908(l)(f)l., the statute on which AHCA principally relies, provides:

Pursuant to chapter 120, the agency shall furnish to providers written notice of the audited hospital cost-based per diem reimbursement rate for inpatient and outpatient care established by the agency. The written notice constitutes final agency action. A substantially affected provider seeking to correct or adjust the calculation of the audited hospital cost-based per diem reimbursement rate for inpatient and outpatient care, other than a challenge to the methodologies set forth in the rules of the agency, and in reimbursement plans incorporated by reference therein used to calculate the reimbursement rate for inpatient and outpatient care, may request an administrative hearing to challenge the final agency action by filing a petition with the agency within 180 days after receipt of the written notice by the provider....

(Emphasis added).

Given the passages emphasized above, the statute does not pertain to—and hence exempts from the declaration of what final agency action is—the “methodologies” used in determining the reimbursement amount. In other words, section 409.908(l)(f)l authorizes formal administrative challenges “to correct or adjust” any “calculation^” made in audited reimbursement requests. By its plain terms then, the statute -does not authorize formal administrative challenges to the “methodologies ... used to calculate the reimbursement rate.” It was the methodology employed by AHCA (which treated the “Medicaid Trend Adjustment” or MTA differently than in years past) which resulted in the challenged reimbursement rates for FY 2016-2017. At the same time, the -statute does not preclude, either explicitly or implicitly, formal administrative challenge to the Medicaid reimbursement rates set by AHCA prior to agency auditing. The statute simply does not speak to pre-audit period.

AHCA has argued that section 409.905(6)(b)l, provides that AHCA cannot change its reimbursement rate after October 31 of the fiscal year in which the rates take effect. It was on the basis of this statute that AHCA argued below that the petitions were moot after Oct. 31, 2016, even though the petitions were filed several months before that date and were still pending as of that date through no fault of the Petitioners. This statute was cited in the Final Order as an alternative basis for denying the hearings sought by Petitioners. In part, the Final Order states:

Even assuming arguendo Petitioners are entitled to challenge the unaudited rates as a substantially affected party under chapter 120, Florida Statutes, the Agency lacks the jurisdiction and authority to grant Petitioners the relief they seek, i.e., the adjustment of their rates. Section 409.905(6)(b)l., Florida Statutes, prohibits the Agency from making any adjustments to Petitioners’ rates ‘after October 31 of the state fiscal year in which the rates take effect ... [.] For the rates at issue, this date has already passed. Accordingly, the Agency must determine the Amended Petition because the Petitioners are not entitled to an administrative hearing to dispute the unaudited rates and, even if they were, the Agency lacks the jurisdiction and authority to grant Petitioners the relief they seek.

An audit is unlikely to have been completed before October 31st of the fiscal year which commences July 1st. Therefore, any rate challenge made before October 31st, is necessarily a challenge of unaudited rates. Thus, in the Final Order, AHCA appears to take two incompatible positions with regard to the 2016 legislative scheme: (i) rates can only be challenged after an audit, and (ii) rate challenges can only occur before October 31st. Obviously, such contrary arguments are untenable, and result from a misreading of the statute.

Section 409.905(6)(b)l. provides in pertinent part:

(6) HOSPITAL OUTPATIENT SERVICES.—
(b) The agency shall implement a methodology for establishing base reimbursement rates for outpatient services for each hospital based on allowable costs, as defined by the agency. Rates shall be calculated annually and take effect July 1 of each year based on the most recent complete and accurate cost report submitted by each hospital.
1. Adjustments may not be made to the rates after October 31 of the state fiscal year in which the rates take effect, except for cases of insufficient collections of intergovernmental transfers authorized under s. 409.908(1) or the General Appropriations Act. In such cases, the agency shall submit a budget amendment or amendments under chapter 216 requesting approval of rate reductions by amounts necessary for the aggregate reduction to equal the dollar amount of intergovernmental transfers not collected and the corresponding federal match. Notwithstanding the $1 million limitation on increases to an approved operating budget under ss. 216.181(11) and 216.292(3), a budget amendment exceeding that dollar amount is subject to notice and objection procedures set forth in s. 216.177.
2. Errors in source data or calculations discovered after October 31 must be reconciled in a subsequent rate period.

(Emphasis added).

A plain reading of subsections 1 and 2 means that the correction of an error is to be made in the next fiscal year when that error is discovered after October 31st; it does not mean—nor could it fairly so provide—that no correction is ever to be made if an error is discovered after Oct. 31st.

Where possible, a court must give full effect to all statutory provisions and construe related statutory provisions in harmony with one another. Heart of Adoptions, Inc. v. J.A., 963 So.2d 189, 199 (Fla. 2007); Woodham v. Blue Cross & Blue Shield of Fla., Inc., 829 So.2d 891, 898 (Fla. 2002). Also, a court must consider the purpose behind a statute. Raymond James, 126 So.3d at 192 (citing W. Fla. Reg’l Med. Ctr., Inc. v. See, 79 So.3d 1, 9 (Fla. 2012)). Further, it is true that an agency’s interpretation of a statute it is charged with “enforcing is entitled to great deference.” Verizon Florida, Inc. v. Jacobs, 810 So.2d 906, 908 (Fla. 2002) (citing BellSouth Telecommunications, Inc. v. Johnson, 708 So.2d 594, 596 (Fla. 1998)). But, it is also true that a reviewing court will not depart from “the contemporaneous construction of a statute by a state agency charged with its enforcement unless the construction is ‘dearly erroneous.’” Id. (quoting PW Ventures, Inc. v. Nichols, 533 So.2d 281, 283 (Fla. 1988)). AHCA’s interpretation of section 409.905(6)(b)l. is clearly erroneous.

In sum, the substantial interest of a party entitled to a Medicaid reimbursement is affected at the time an unsatisfactory rate is announced as that rate takes effect immediately and reimbursements which are made prior to auditing are based on that rate. The Petitioners have alleged, and we must accept as fact per Herbits, that the methodologies used to set the reimbursement rates are not subject to change during the auditing process, and thus the rate becomes “final” at the time it is announced. Therefore, with regard to the amount - of the reimbursement rates, the- agency’s action has become final. Accordingly, we reverse the orders of dismissal and remand for the grant of formal hearings pursuant to section 120.57(1), Florida Statutes.

REVERSED and REMANDED.

ROBERTS and M.K. THOMAS, JJ., CONCUR.

      . “As a general principle of administrative law, a person is entitled to a section 120.57 hearing when an agency takes a final action affecting that person’s interests and there is a disputed issue of material fact related to that action.” Save Our Creeks v. State of Fla. Fish and Wildlife Conservation Comm’n, 112 So.3d 128, 130 (Fla. 1st DCA 2013) (citing Friends of the Hatchineha, Inc. v. Dep’t of Envtl. Reg., 580 So.2d 267, 269 (Fla. 1st DCA 1991)).

      . The 2016 version of the statute has been amended. See Ch. .16-65, Laws of Fla.


author: PER CURIAM. RAY, J.,

text:
    Patricia Nicole JUNK, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-3636
    District Court of Appeal of Florida, First District.
    Opinion filed November 30, 2017.

      Andy Thomas, Public Defender; and Steven L. Seliger, Assistant Public Defender, for Appellant.
    Pamela Jo Bondi, Attorney General; .and David Llanes, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

. Patricia Nicole Junk was adjudicated guilty and sentenced to six months of probation after entering a negotiated plea. She signed a plea form agreeing to comply with all standard conditions of probation as required by statute. She violated her probation and was sentenced to eleven months and thirty days in county jail, with credit for time served, which would have been a legal sentence for her underlying offense. The specific violations of probation alleged were as follows: (1) failing to report to her probation officer in December 2015 and January 2016; (2) changing her residence without consent; (3) failing to report to her probation officer on November 23, 2015; and (4) refusing to submit to drug and alcohol tests.

Consistent with the State’s concession of error, we reverse as to the second and fourth violations for changing residence without consent and refusing to submit to drug and alcohol tests, because the trial court did not orally pronounce these findings. See Maddox v. State, 619 So.2d 473, 473 (Fla. 1st DCA 1993) (remanding with instructions to amend the written revocation ordér to comport with court’s oral pronouncements). We nevertheless affirm the order revoking probation and the sentence imposed.

A preponderance of the evidence standard applies. Van Wagner v. State, 677 So.2d 314, 316 (Fla. 1st DCA 1996). A .violation of probation must be both substantial and willful to justify revoking probation. Burgin v. State, 623 So.2d 575, 576 (Fla. 1st DCA 1993); see also Savage v. State, 120 So.3d 619, 621 (Fla. 2d DCA 2013) (explaining competent substantial evidence standard as threshold question for ■findings of substantiality and willfulness). The trial court’s finding of substantial'and willful violations is reviewable for abuse of discretion. Lawson v. State, 969 So.2d 222, 229 (Fla. 2007) (applying abuse of discretion standard to trial court’s ultimate decision to revoke probation). Here, defense counsel stipulated that Appellant’s violations of probation were substantial, and argued only willfulness.

We affirm the trial court’s finding that Appellant willfully violated Her probation by failing to report to her probation officer on November 23, 2015. The record reflects that Appellant was instructed where to go for the initial meeting with her probation officer, but went to the wrong office. She was told that she was at the wrong office, and was told again wh.ere to go to meet with her probation officer. She nevertheless failed to report to the correct address and failed to make any further contact, ever, with her probation officer. The defense argued that Appellant’s mistaken reporting to the wrong probation field office for the initial meeting with her probation officer exhibited an attempt to comply and thus was not willful.

A preponderance of competent, substantial evidence supports the trial court’s finding that Appellant’s violation was willful. Our conclusion is bolstered by the fact that Appellant made no further effort to report to her probation officer. A defendant’s complete failure to report to the assigned probation officer establishes a substantial and willful violation. Brown v. State, 776 So.2d 329, 330 (Fla. 5th DCA 2001) (affirming order revoking probation after appellant “failed to report at all”). In Brown, the defendant reported to his probation officer for an initial meeting, but the officer did not have the defendant’s file yet, and therefore told him to contact the officer the following week. He failed to do so. The appellate court affirmed the' trial court’s finding of a substantial and willful violation of probation, describing the defendant’s “failure to report at all” as showing “ ‘a complete indifference to compliance with [the] conditions of probation.’ ” Brown, 776 So.2d at 330 (quoting Goley v. State, 584 So.2d 139, 141 (Fla. 5th DCA 1991)). On the facts presented, we need not evaluate ■ separately whether Appellant’s failure to report during the two months before the probation officer filed the affidavit of violation of probation constituted a separate violation or impacted the sentence imposed. Appellant’s “complete lack of effort to contact [her] probation officer and [her] complete indifference to [her] obligations” is sufficient to support revocation of probation. Grimsley v. State, 408 So.2d 1075, 1075 (Fla. 2d DCA 1982).

The trial court was within its discretion to impose an eleven-month, thirty-day sentence on these facts. See § 948.06(2)(e), Fla. Stat. (2015) (allowing trial court upon revocation of probation to impose “any sentence which it might have originally imposed before placing the probationer on probation”). Appellant’s counsel conceded at the hearing that Appellant faced this sentence, but argued for leniency. The state reviewed the facts giving rise to the violation, and Appellant’s prior record of six' misdemeanors. The trial court immediately imposed this sentence after orally adjudicating Appellant guilty of failing to report. We therefore affirm the order of revocation and the sentence imposed. See Grimsley, 408 So.2d at 1076 (affirming both revocation and sentence where record satisfied appellate court that trial court would impose the same sentence).

AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings consistent with this opinion.

B.L. THOMAS, C.J., and KELSEY, J., CONCUR; RAY, J., CONCURS IN PART AND DISSENTS IN PART WITH OPINION.

RAY, J.,

CONCURRING IN PART AND DISSENTING IN PART.

I concur with the majority’s affirmance of the trial court’s finding of a violation for Appellant’s failure to report to her probation officer on November 23, 2015, and the reversal of the findings of violation for her change of residence and refusal to submit to drug and alcohol tests. Unlike the majority, I would evaluate separately whether Appellant violated her probation by failing to report to her probation officer in December 2015 or January 2016. Finding no competent, substantial evidence of a willful violation, I would remand for the trial court to reconsider revocation and sentencing.

Appellant argues that her failure to report to her probation officer in December 2015 or January 2016 was not willful. The record contains Appellant’s Order of Probation, which includes the standard probation condition that she “report to the probation officer as directed.” At the hearing, the State presented no evidence that Appellant was directed to report to the probation officer on any occasion in December 2015 or January 2016. Thus, no competent, substantial evidence supports the trial court’s finding of a violation on these dates.

Although the sole remaining violation is reason enough to revoke Appellant’s probation, because the record does not establish that the trial court would have revoked probation and entered the same sentence based on this violation alone, I would remand for the trial court to reconsider revocation and sentencing. See Washington v. State, 215 So.3d 202 (Fla. 1st DCA 2017) (reversing for reconsideration while affirming findings sufficient to support revocation of probation).


author: EDWARDS, J.

text:
    Mehrdad GOLCHIN, Appellant, v. Masoumeh FARZANEH, Appellee.
    Case No. 5D17-1645
    District Court of Appeal of Florida, Fifth District.
    Opinion filed December 1, 2017
    Harley Gutin, Cocoa, for Appellant.

      Masoumeh Farzaneh, Melbourne, pro se. - ■
   EDWARDS, J.

Mehrdad Golchin (“Former Husband”) appeals the trial court’s order that overruled his exceptions and adopted the report and recommendation of the general magistrate ordering him to pay retroactive child support. The trial court erred by granting retroactive child support, which included a period of time before Masou-meh Farzaneh (“Former Wife”) filed her motion seeking child support. We reverse and remand for entry of a corrected order.

In February 2016, the trial court entered a stipulated final judgment, which stated that Former Husband transferred his interest in the marital home to Former Wife to be applied in part to child support and related obligations on behalf of their only child. The parties specifically waived all prior claims for child support arrearag-es or retroactive relief. The final judgment did not award child support to, either party, but provided that either party could seek child support in the future, by filing a motion even' if there was no substantial change in circumstances. In October 2016, Former Wife filed her motion seeking an award' of child support based on the facts that Former Husband had returned to Brevard County from an extended stay in Iran and he was now-employed locally as a car salesman.

Following a hearing in December 2016, the magistrate issued a report and recommendation requiring Former Husband to pay child support prospectively át the rate of $832 per month to Former Wife, commencing January 2017. The’ report and recommendation also provided that Former Husband owed child support retroactive to the' date of the February 2016 stipulated final judgment; the magistrate calculated the arrearage to be $9162. The magistrate credited Former Husband $500 for a voluntary child support payment he made in November 2016 and required Former Husband to make monthly payments of $166,40 until he paid off the remaining balance of the ’ retroactive child support,

Former Husband timely filed written exceptions to the magistrate’s report and recommendation regarding awarding retroactive child support for any period of time prior to when Former Wife filed her motion seeking child support. The trial court overruled Former Husband’s exceptions, denied his motion for rehearing, and adopted the magistrate’s report and recommendation as its order.

The trial court erred by ordering Former Husband to pay retroactive child support for any period prior to the date Former Wife- filed her motion for child support. See Berger v. Berger, 559 So.2d 737, 738 (Fla. 5th DCA 1990) (reversing the trial court’s order “[pjegging the retroactive support” to a date “27 months prior to the date the petition seeking child support was filed”); Fayson v. Fayson, 482 So.2d 523, 525 (Fla. 5th DCA 1986) (trial court can only modify support payments prospectively from the date a petition for modification is filed); see also Beroes v. Fla. Dep’t of Rev. ex rel. Palacios, 958 So.2d 489, 493-94 (Fla. 3d DCA 2007) (finding that “it was improper to grant retroactive child support to May 24, 2000, which is two years prior to the filing of the former wife’s Supplemental Petition seeking child support”). Accordingly, we reverse and remand with instructions for the trial court to enter an amended order that corrects the arrear-age amount by using October 26, 2016, the date Former Wife filed her motion for child support, as the commencement date for retroactive child support.

REVERSED AND REMANDED WITH INSTRUCTIONS.

COHEN, C.J. and TORPY, J., concur.


author: WALLIS, J.

text:
    Charles GREEN, Appellant, v. GREEN TREE SERVICING, LLC, Countrywide Home Loans, Inc., Capital One Bank (USA), N.A. f/k/a Capital One Bank, CACV of Colorado, LLC, Appellees.
    Case No. 5D15-4413
    District Court of Appeal of Florida, Fifth District.
    Opinion filed December 1, 2017
    Beau Bowin, of Bowin Law Group, In-dialantic, for Appellant.
    Brandon S. Vesely, of Albertelli Law, Tampa, for Appellee, Green Tree Servicing, LLC.

      No Appearance for other Appellees.
   WALLIS, J.

Charles Green (“Borrower”) appeals the trial court’s final foreclosure judgment in favor of Green Tree. Servicing, LLC (“Green Tree”). Because Green Tree did not establish its standing to foreclose, we reverse and remand for the entry of an involuntary dismissal.

In 2004, Borrower executed and delivered a note and mortgage in favor of Countrywide Home Loans, Inc. (“CHL, Inc.”). In December 2009, BAC Home Loans Servicing, LP (“BAC”), f/k/a Countrywide Home Loans Servicing, LP (“CHL Servicing, LP”), filed a foreclosure complaint against Borrower, alleging a January 2009 default date. BAC also alleged its status as loan servicer and holder of the note. To the complaint, BAC attached an unindorsed copy of the note. Borrower answered the complaint, denying BAC’s ownership of the note, and asserted a lack’ of standing as an affirmative defense.

In 2012, the trial court granted BAC’s motion, to substitute Bank of America, N.A., its successor by merger, as plaintiff. Then, in April 2014, the trial court granted Bank of America’s motion to substitute Green Tree as plaintiff, by virtue of assignment. In October 2014, Green Tree filed an amended complaint, once again alleging a January 2009 default date. In the amended complaint, Green Tree alleged its status as holder of the note and attached a copy of the note bearing an undated blank indorsement from CHL, Inc. In his answer, Borrower again raised BAC’s lack of standing.

At trial, Green Tree called Christopher Lee, a foreclosure mediation specialist for Ditech Financial, LLC (“Ditech”), “formerly known as’ Green Tree Servicing LLC.” The original note admitted into evidence at trial bore the same blank indorsement as the copy attached to the amended complaint. Lee testified that he had no knowledge of when CHL, Inc., indorsed the note, and provided no-business records to indicate the date. Over Borrower’s objection, the trial court admitted several merger documents, including an August 2015 certificate of merger between Green Tree and Ditech. The certificate of merger provided that “[t]he surviving limited liability company is Green Tree Servicing LLC,” but then added that “[t]he name ’ of the surviving limited liability company is hereby amended to Ditech Financial LLC.” Lee further testified that “Countrywide Home Loan Servicing was renamed BAC Home Loan Servicing” in April 2009, before the filing of the original complaint, but Green Tree presented no other evidence or testimony about any servicing agreements. After trial, the lower court entered final judgment of foreclosure for Green Tree.

“A crucial element in any mortgage foreclosure proceeding is that the party seeking foreclosure must demonstrate that it has standing to foreclose.” McLean v. JP Morgan Chase Bank Nat’l Ass’n, 79 So.3d 170, 173 (Fla. 4th DCA 2012). We review a trial court’s decision as to this standing requirement de novo. See Elsman v. HSBC Bank USA, 182 So.3d 770, 771 (Fla. 5th DCA 2015). “[A] person entitled to enforce the note and foreclose on a mortgage is the holder of the note, a non-holder in possession of the note who has the rights of a holder, or a person not in possession of the note who is entitled to enforce ....” Gorel v. Bank of N.Y. Mellon, 165 So.3d 44, 46 (Fla 5th DCA 2015) (citing § 673.2011, Fla. Stat. (2013)). Generally, “a party’s standing is determined at the time the lawsuit was filed.” McLean, 79 So.3d at 173. Here, BAC’s original complaint did not establish its holder status because it included only an unindorsed note payable to the original lender, CHL, Inc. Cf. § 671.201(21), Fla. Stat. (2015) (defining “holder” as “[t]he person in possession of a negotiable instrument that is payable either to bearer or to an identified person that is the person in possession”). Thus, Green Tree properly concedes that its subsequent filing of the indorsed note with the amended complaint and at trial did not retroactively establish BAC’s standing at the inception of the suit. See Walsh v. Bank of N.Y. Mellon Tr., 219 So.3d 929, 930 (Fla. 5th DCA 2017).

Instead, Green Tree asserts that the merger between BAC and CHL Servicing, LP, established BAC’s standing at the time of filing the original complaint. “[I]n order to prove standing to foreclose based upon a merger, the surviving entity must prove that it ‘acquired all of [the absorbed entity’s] assets, including [the] note and mortgage, by virtue of the merger.’ ” Vogel v. Wells Fargo Bank, N.A., 192 So.3d 714, 716 (Fla. 4th DCA 2016) (quoting Fiorito v. JP Morgan Chase Bank, Nat’l Ass’n, 174 So.3d 519, 521 (Fla. 4th DCA 2015)). Here, like the witness in Vogel, Green Tree’s witness offered no explanation “as to why the copy of the note attached to the complaint ... did not reflect the [indorsements” and testified that he did not know when the blank indorsement was placed on the note. See id. at 716-17. Additionally, the witness testified primarily about Ditech’s receipt of Green Tree’s and BAC’s business records but failed to address the transfer of the note to BAC pursuant to the -merger. Thus, Green Tree failed to demonstrate that BAC acquired standing based on the merger. See id.

Further, the merger may not have established BAC’s standing even with the necessary evidence at trial. The merger involved BAC and CHL Servicing, LP, while the original note listed CHL, Inc., as the original lender. Neither Green Tree nor its witness explained the relationship between these two distinct entities. Furthermore, throughout trial, Green Tree’s counsel improperly conflated the two by referring to both as “Countrywide Home Loans,” or simply “Countrywide.” See Wisman v. Nationstar Mortg., LLC, 42 Fla. L. Weekly D2251, D2252, — So.3d —, —, 2017 WL 4699718 (Fla. 5th DCA Oct. 20, 2017) (“While Nationstar claims that CHL Inc., CHL Servicing, LP and BAC are the same entity, its own evidence demonstrates otherwise.... [T]he evidence fails to show that CHL Inc. was affiliated with either CHL Servicing, LP or BAC.”). Thus, Green Tree unper-suasively argues that BAC acquired possession of the note by way of the merger with CHL Servicing, Inc., which never held the note. See Vogel, 192 So.3d at 716. Only on appeal does Green Tree argue that CHL Servicing, LP, hád standing as the original servicer. However, the servi-cer relationship alone does not demonstrate standing to foreclose. See Rodriguez v. Wells Fargo Bank, N.A., 178 So.3d 62, 63 (Fla. 4th DCA 2015).

Because-none of Green Tree’s purported predecessors had standing to foreclose at the inception-of the case, the trial court erred by finding that Green Tree acquired standing to foreclose. See Corrigan v. Bank of Am., N.A., 189 So.3d 187, 190 (Fla. 2d DCA 2016). Accordingly,- we reverse and remand for entry of an involuntary dismissal. See Walsh, 219 So.3d at 930.

REVERSED and REMANDED with Instructions.

COHEN, C.J. and SAWAYA, J„ concur.


text:
    The PUBLIC HEALTH TRUST OF MIAMI-DADE COUNTY, FLORIDA d/b/a Jackson South Community Hospital, Appellant, v. DEPARTMENT OF HEALTH, Appellee, Kendall Healthcare Group, Ltd. d/b/a Kendall Regional Medical Center, Appellee/Cross-Appellant,
    CASE NO. 1D16-3244
    District Court of Appeal of Florida, First District.
    Opinion filed December 6, 2017
    Thomas F. Panza, Paul C. Buckley, and Brian S. Vidas' of Panza, Maurer & Maynard, P.A., Fort Lauderdale, for Appellant.
    Jay Patrick Reynolds, Chief Legal Counsel, and Sarah Young Hodges, Chief Appellate Counsel, Tallahassee, for Appel-lee Department of Health.
    Stephen A. Ecenia, J. Stephen Menton, and Gabriel F. V. Warren of Rutledge Ecenia, ■ P.A., Tallahassee, for Appel-lee/Cross-Appellant • Kendall Healthcare Group, Ltd. d/b/a Kendall Regional! Medical Center.
   PER CURIAM.

The Public Health Trust of Miami-Dade County, Florida d/b/a Jackson South Community Hospital (Jackson,South) appeals an order of the Department of Health (Department) dismissing as moot Jackson South’s petition for a formal administrative hearing to contest the Department’s decision to deny Jackson South’s application to operate a provisional Level II trauma center after Jackson South was granted a provisional license in the following application cycle. Because we conclude that an actual case or controversy continues to exist with respect to Jackson South’s first application, we reverse and remand for the Department to consider Jackson South’s administrative challenge on the merits.

I.

We begin with a brief overview of the ■statutory and regulatory framework governing the trauma center application and selection process. The Florida Legislature has delegated the primary responsibility for the planning and establishment of a statewide inclusive trauma system to the Department. § 395.40(3), Fla. Stat. (2015). As part of this legislative mandate, the Department is charged with allocating, by rule, the number of trauma centers needed for each of the state’s 19 trauma service areas (TSA), subject to the limitations that each TSA should have at least one Level I or Level II trauma center and there may be no more than 44 trauma centers statewide. § 395.402(4)(a)-(c), Fla. Stat. (2015). Relevant to this appeal, TSA 19, which comprises Miami-Dade and Monroe counties, is permitted a maximum of three trauma centers. Fla. Admin. Code R. 64J-2.010(3).

A, Application and Selection Process

The trauma center application and selection process is a lengthy, multistage process that begins each year with the Department notifying acute care hospitals and trauma agencies that it is accepting letters of intent from those hospitals interested in becoming trauma centers. § 395.4025(2)(a), Fla. Stat. (2015). Letters of intent are due by October 1, and- the Department thereafter distributes an application package to each hospital that timely submitted a letter of intent. § 395.4025(2)(a)-(b), Fla. Stat. (2015). The completed application is due by April 1 of the following year.. § 395,4025(2)(c), Fla. Stat. (2015)..

After the Department receives a trauma center application, it conducts a provisional review “for the purpose of determining that the hospital’s application is complete and that the hospital has the critical elements required for a tratiiha center.” Id. If the' Department finds the hospital’s application acceptable based on the provisional review, the hospital is “eligible to operate as a provisional trauma center.” § 395.4025(3), Fla. Stat. (2015).

Between May 1 and October 1, the process entails an “in-depth.eyaluation” by the Department of all applications found acceptable in the provisional review. § 395.4025(4), Fla. Stat, (2015). And between October 1 and June 1, a review team of out-of-state experts assembled by the Department conducts onsite visits of all provisionally approved trauma centers. § 395.4025(5), Fla. Stat. (2015). Based on the recommendations from the review team, the Department selects. verified trauma centers by July 1 of the second year following the filing of the letter of intent. § 395.4025(6), Fla. Stat. (2015). If the number of qualified provisional trauma centers exceeds the number of available slots for .verified trauma centers in the applicable TSA, the Department applies a tiebreaking process developed by rule to make the final selections). Fla. Admin. Code R. 64J-2.016(11). Upon final verification, the trauma center is granted approval to operate for seven years, provided it continues to maintain trauma center standards and acceptable patient outcomes, and may thereafter apply for renewal. § 395.4025(6), Fla. Stat. (2015).

B. Jackson South’s Applications

On or about April 1, 2015, Jackson South applied to operate a Level II trauma center in TSA 19 during the 2014-2016 application cycle (the “2015 Application”). Aventura Hospital & Medical Center (Aventura) also applied to operate a Level II trauma center, in TSA 19 in the same application cycle. At that point in time, there were already two verified trauma centers in TSA 19, Ryder Trauma Center at Jackson Memorial and Kendall Regional Medical Center (Kendall). As such, both Jackson South and Aventura were competing for the sole remaining trauma center slot in TSA 19.

After the required provisional review of the applications, the Department denied Jackson South’s application, concluding that it “did not meet the standards of critical elements for provisional status.” Aventura’s application was accepted by the Department, and it was provisionally approved to operate a Level II trauma center in TSA 19.

Jackson South challenged the Department’s decision denying its 2015 Application and a formal administrative hearing was conducted before the Division of Administrative Hearings. On February 29, 2016, Administrative Law Judge John G. Van Laningham entered an order rejecting the Department’s decision and recommending that the Department enter a final order (1) deeming Jackson South’s 2015 Application acceptable, (2) verifying that Jackson South was in substantial compliance with the requirements of section 395.4025, and (3) approving Jackson South to operate as a provisional Level II trauma center until the 2014-2016 application cycle concluded for TSA 19. The Department and the Intervenor, Kendall, filed exceptions to the recommended order.

In the interim, Jackson South filed a Level II trauma center application in the 2015-2017 application cycle (the “2016 Application”). After conducting the required provisional review, the Department granted Jackson South provisional licensure and Jackson South began operating as a provisionally approved Level II trauma center.

Kendall then moved to dismiss Jackson South’s pending administrative challenge, arguing that it is now moot.since Jackson South obtained provisional approval to operate a Level II trauma center based upon its 2016- Application. The Department agreed. On July 7, 2016, the Department entered a final order dismissing Appellant’s petition as moot, concluding that Jackson South “has been granted what it seeks, a license to operate a provisional level II trauma center.” This timely appeal followed.

II.

Jackson South contends the Department committed reversible error in the final order below by not entering a substantive determination on the merits of Jackson South’s petition challenging the denial of its 2015 Application. We review de novo the Department’s decision dismissing Jackson South’s administrative challenge as moot. See Carlin v. State, 939 So.2d 245, 247 (Fla. 1st DCA 2006). “An issue is moot when the controversy has been so fully resolved that a judicial determination can have no actual effect.” Godwin v. State, 593 So.2d 211, 212 (Fla. 1992).

We initially address Kendall’s argument that Jackson South abandoned its 2015 Application by filing the 2016 Application. Kendall contends the statutory and regulatory framework governing the trauma center application process does not allow a hospital to maintain overlapping trauma center applications before the Department. However, nothing in the applicable statutes or rules prohibits a hospital from participating in a subsequent application cycle while challenging the' denial of a previous application. The statutory scheme provides several points of entry for a hospital to challenge an adverse decision made by the Department, including the decision to deny an applicant a provisional license. § 395.4025(7), Fla. Stat. (“Any hospital that wishes to protest a decision made by the department based on the department’s preliminary or in-depth review of applications or on the recommendations of the site visit review team pursuant to this section shall proceed as provided in chapter 120.”). Additionally, the Department’s decision to deny an application for provisional status does not prevent that applicant from submitting another application in a future application cycle. See Fla. Admin. Code R. 64J-2.012(1)(g)2. (“The department shall inform each hospital whose provisional application it has denied of the remaining deficiencies in the application and shall inform the hospital that it may submit a letter of intent at the beginning of the next approval cycle.”). Had the Legislature or the Department intended to limit an applicant’s right to pursue both of these avenues concurrently, the statute or rule would explicitly prohibit such action.

Turning to the Department’s mootness determination, the fact that Jackson South was granted a provisional license to operate a Level II trauma center in TSA 19 based on its 2016 Application does not resolve the controversy that exists by virtue of the Department’s denial of the 2015 Application. An actual controversy exists in the 2014-2016 application cycle because, with the denial of Jackson South’s application, Jackson South will not be allowed to compete with Aventura for the final available trauma center slot in TSA 19. Had the Department agreed with Judge Van Lan-ingham’s recommendation to reverse the denial of Jackson South’s application, Jackson South would have been given the opportunity to proceed through the rest of the application process, potentially triggering the tiebreaking mechanism if both hospitals were successful in completing the in-depth review and site survey stages. At that point, either Aventura or Jackson South-but clearly not both-would receive final verification to operate as a Level II trauma center for the seven-year approval period.

Due to the limitation on the number of trauma centers that can operate in TSA 19, Jackson South’s current status as a provisional trauma center does not extinguish its rights under the 2015 Application. If Aventura is awarded the final remaining trauma center slot in TSA 19, Jackson South’s 2016 Application may ultimately be denied due to a lack of authorized need. Even if a hospital successfully completes the rigorous application process to become a verified trauma center, there still must be a need for a trauma center in the relevant TSA. See § 395.4025(5), Fla. Stat. (providing that “hospitals being considered as provisional trauma centers shall meet all the requirements of a trauma center and shall be located in a trauma service area that has a need for such a trauma center*’) (emphasis added). Because Jackson South’s 2016 Application, was filed in a later application cycle than. Aventura’s, it is. subject to,-the challenge that it was filed too late to compete with Aventura for the final slot in TSA 19.. Indeed, neither the Department nor Kendall is willing to concede that Jackson South would be allowed to compete against Aventura for the final slpt in TSA 19 under the 2016 Application.. Thus, Jackson South’s administrative challenge; contesting the denial of its 2015 Application is not moot. Cf. Charter Medical-Southeast, Inc. v. State, Dep’t of Health & Rehabilitative Servs., 495 So.2d 759 (Fla. 1st DCA 1986) (concluding that settlement agreement granting hospital a certificate of need to construct a psychiatric facility did not moot hospital’s appeal of the agency’s order denying the certificate of need because the settlement agreement was subject to challenges to which the application was not).

Accordingly, we reverse the Department’s order and remand for further proceedings consistent with this opinion.

REVERSED and REMANDED.

WETHERELL, RAY, and MAKAR, JJ., C0NC.UR. ' ■

      . The Department also concluded that, al- < though the tiebrealdng procedure was not "an issue or controversy in this matter," the tie-breaking rule "does hot indicate that trauma centers can only engage in head-to-head competition if provisional status was granted during the same application, year.” This conclusion of law is the basis of Kendall's cross-appeal. Because we reverse the final order in full, we do not reach the cross-appeal.

      . Kendall notes that the Department has proposed rules that would allow there to be more trauma centers in a given TSA than the Department’s TSA allocation, provided the statutory cap of 44 trauma centers statewide has not been met. Under the new rules, Kendall contends that the number of trauma centers allocated to TSA 19 will no longer present an impediment to Jackson South receiving final approval of its 2016 Application, 'assuming Jackson South meets all of the substantive application requirements. We decline to address the extent to which the Department's proposed rules, which Kendall acknowledges .have been administratively challenged, would impact the analysis of the issues in this case.