text:
    Willian STANKOS and Joanne Stankos, Individually and as Parents and Natural Guardians of Sam Jaden Stankos, a Minor Child, Appellants, v. AMATEUR ATHLETIC UNION OF THE UNITED STATES, INC., Appellee.
    No. 4D17-3361
    District Court of Appeal of Florida, Fourth District.
    [September 12, 2018]
    David J. Sales and Daniel R. Hoffman of David J. Sales, P.A., Jupiter, and Jack Scarola and David P. Vitale, Jr. of Searcy Denney Scarola Barnhart & Shipley, P.A., West Palm Beach, for appellants.
    Elizabeth K. Russo of Russo Appellate Firm, P.A., Miami, and Rafferty E. Taylor and Martin D. Stern of Hinshaw & Culbertson, Fort Lauderdale, for appellee.
   Per Curiam.

William and Joanne Stankos (the "Stankoses") timely appeal a non-final order compelling arbitration in the underlying personal injury action. It is undisputed that the defendant below, the Amateur Athletic Union of the United States, Inc. ("AAU"), waived arbitration by answering the Stankoses' initial complaint. However, after the Stankoses filed an amended complaint, AAU filed a motion to compel arbitration, arguing that its right to seek arbitration was revived by the amended complaint. The trial court granted AAU's motion and entered the order compelling arbitration. Having determined that the Stankoses' amended complaint did not revive AAU's right to compel arbitration, we reverse.

Background

The underlying action arises from a head injury, which the Stankoses' minor son suffered during a taekwondo competition organized by AAU. The Stankoses' initial complaint alleged several causes of action against AAU, including claims for negligence, "misrepresentation and concealment," loss of filial consortium, and injunctive relief. AAU filed an answer and an amended answer to the initial complaint. AAU also engaged in extensive discovery pertaining to the merits of the case.

More than a year after the initial complaint was filed, the Stankoses filed an amended complaint. In the amended complaint, the Stankoses added two additional causes of action, namely, a claim alleging that AAU violated section 943.0438, Florida Statutes (2013), and a claim under the Florida Deceptive and Unfair Trade Practices Act (FDUTPA).

The count alleging violations of section 943.0438 appears to be directed at augmenting the Stankoses' negligence count based on a theory of negligence per se for AAU's alleged failure to comply with the provisions in that statute requiring youth sports organizations to adopt certain safety measures. See § 943.0438(2)(f) & (g), Fla. Stat.

Additionally, the FDUTPA count alleged in relevant part that "[p]ermitting children, such as Jaden, to compete in 'light head contact' competitions without first complying with Florida state law to enforce rules and bylaws intended to protect youth athletes from potentially life-long injuries related to concussions and head injuries, is obviously deceptive, grossly unfair, and beyond conscionable."

After the amended complaint was filed, AAU moved to compel arbitration based on an arbitration clause contained within the AAU handbook. The Stankoses agreed to be bound by this clause when they applied for an AAU membership. In the motion, AAU argued that, although it may have waived arbitration by answering the initial complaint, its right to seek arbitration was revived when the Stankoses filed their amended complaint, which AAU maintains expanded the scope of the litigation. The trial court granted the motion and entered an order compelling arbitration.

Discussion

As a preliminary matter, there is no doubt that AAU waived its right to compel arbitration by answering the Stankoses' initial complaint and engaging in discovery directed to the merits of the case. Doctors Assocs., Inc. v. Thomas , 898 So.2d 159, 162 (Fla. 4th DCA 2005) ; Marine Envtl. Partners, Inc. v. Johnson , 863 So.2d 423, 427 (Fla. 4th DCA 2003).

With respect to the effects of the amended complaint, no Florida case holds that the right to compel arbitration is revived by the filing of an amended complaint. To the contrary, at least one district court of appeal has concluded that "[t]he fact that the plaintiffs filed an amended complaint does nothing to revive [the defendant's] right to arbitration." Morrell v. Wayne Frier Mfrd. Home Ctr. , 834 So.2d 395, 398 (Fla. 5th DCA 2003).

AAU argues, based on Eden Owners Ass'n, Inc. v. Eden III, Inc. , 840 So.2d 419 (Fla. 1st DCA 2003), that an amended complaint can revive a defendant's previously waived right to compel arbitration. AAU's reliance on Eden is misplaced. In Eden , the plaintiff did not raise an arbitrable issue until it filed its second amended complaint. Id. at 420. As the plaintiff's earlier complaints did not raise any arbitrable issues, the defendant did not waive arbitration by answering those complaints. Id. In this case, unlike Eden , the Stankoses' initial complaint raised arbitrable issues.

AAU also argues, based on federal case law, that an amended complaint can revive a defendant's previously waived right to compel arbitration if the amended complaint unexpectedly alters the nature and scope of the litigation. See , e.g. , Krinsk v. SunTrust Banks, Inc. , 654 F.3d 1194 (11th Cir. 2011). In Krinsk , the court held that an amended complaint, which expanded the putative class by thousands (possibly tens of thousands), revived the defendant's right to compel arbitration. Id. at 1203-04. The court determined, as a matter of fairness, that the defendant's right to seek arbitration was revived because the defendant "could not have foreseen that [the plaintiff] would expand the putative class in such a broad way nine months into the litigation." Id. at 1204.

In this case, unlike Krinsk , the amended complaint does not alter the scope or theory of the underlying litigation in an unforeseeable way. The amended complaint does not involve issues significantly separate and distinct from those raised in the original complaint. The new claims are still directed toward the minor child's injury and AAU's safety practices. The Stankoses' claim under section 943.0438 merely provides a possible basis for a finding of negligence per se based on the same core set of facts raised in the initial pleading. Similarly, the FDUTPA claim, assuming it is even viable, does not unexpectedly alter the scope or theory of the litigation. The original complaint already asserted a similar claim for misrepresentation, and already sought injunctive relief that would be applied to other taekwondo participants at AAU events. Finally, the inclusion of a request for attorney's fees in the FDUTPA claim cannot be deemed to have materially altered the scope or theory of the litigation.

Accordingly, we reverse the trial court's order compelling arbitration and remand for further proceedings consistent with this opinion.

Reversed and Remanded .

Taylor and Forst, JJ., concur.

Levine, J., concurs specially with opinion.

I concur in the result to reverse the trial court's rulings. I also write to expound upon why the Krinsk standard is the correct standard to apply when determining whether an amended complaint would allow the defendant to rescind an earlier waiver and revive an arbitration agreement after waiving it following the initial complaint.

In granting the motion to compel arbitration, the trial court found that the right to arbitration was not waived and, even if it was waived, there was no showing of prejudice. Initially, the trial court erred in applying a prejudice test because under Florida law proof of prejudice is not required "in order for there to be an effective waiver of the right to arbitrate." Raymond James Fin. Servs., Inc. v. Saldukas , 896 So.2d 707, 711 (Fla. 2005).

Additionally, the trial court erred in finding that AAU did not initially waive arbitration. Although Florida law favors resolution by arbitration, a valid contractual right to arbitrate a dispute may be waived. Id. "A party who actively participates in the litigation waives its right to compel arbitration." Sitarik v. JFK Med. Ctr. Ltd. , 11 So.3d 973, 974 (Fla. 4th DCA 2009). In this case, AAU actively participated in litigation by filing an answer and affirmative defenses as well as an amended answer and affirmative defenses and engaging in discovery after the initial complaint. See id.

In Krinsk v. SunTrust Banks, Inc. , 654 F.3d 1194, 1202 (11th Cir. 2011), the Eleventh Circuit recognized that there are circumstances in which an amended complaint can revive the right to compel arbitration:

[A] defendant's waiver of the right to compel arbitration is not automatically nullified by the plaintiff's filing of an amended complaint. Rather, courts will permit the defendant to rescind his earlier waiver, and revive his right to compel arbitration, only if it is shown that the amended complaint unexpectedly changes the scope or theory of the plaintiff's claims.

Id. (citations omitted). The right to compel arbitration is not revived, however, where the amended complaint makes only minor changes to the factual allegations or legal claims previously asserted. Id. Thus, in Krinsk , the court found that the right to compel arbitration could be revived by the filing of an amended complaint that broadened the potential scope of litigation by opening the door to thousands of new class plaintiffs not contemplated in the original class. See also Plaintiffs' S'holders Corp. v. S. Farm Bureau Life Ins. Co. , 486 Fed. Appx. 786 (11th Cir. 2012).

The Krinsk standard is consistent with Florida cases involving counterclaims, which suggest that an amended complaint could revive the right to arbitration if it involves issues separate and distinct from those raised in the original complaint, or if the amended complaint significantly alters the scope and nature of the litigation. For instance, in Owens & Minor Medical, Inc. v. Innovative Marketing & Distribution Services, Inc. , 711 So.2d 176 (Fla. 4th DCA 1998), appellant filed suit against appellee for breach of contract, among other claims. Appellee filed a counterclaim, alleging that the contract was fraudulently induced and, if enforceable, breached by appellant. Appellant moved to compel arbitration. This court found that appellant waived its right to arbitrate by actively participating in the litigation. We rejected appellant's argument that it did not participate in the litigation in relation to the counterclaim, stating:

[T]he counterclaim does not involve issues separate and distinct from those raised in appellant's amended complaint .... The matters raised in the counterclaim are intertwined with issues raised in the amended complaint, since to decide each claim a fact finder would necessarily have to resolve fact issues common to both.
This close relationship between the claims of the parties distinguishes this case from those cited by appellant, where claims subject to arbitration were "separate and distinct" from claims for which arbitration had arguably been waived. See Design Benefit Plans, Inc. v. Enright , 940 F.Supp. 200 (N.D. Ill. 1996) ; Gingiss Int'l, Inc. v. Bormet , 58 F.3d 328 (7th Cir.1995). Similarly, the counterclaim did not significantly alter the scope and nature of the litigation, such that it revived a previously waived right to demand arbitration. Cf. Gilmore v. Shearson/American Express Inc. , 811 F.2d 108 (2d Cir. 1987) ; Cabinetree of Wisconsin, Inc. v. Kraftmaid Cabinetry, Inc. , 50 F.3d 388 (7th Cir. 1995)....

Id. at 177. See also Chaikin v. Parker Waichman LLP , 253 So.3d 640, (Fla. 2d DCA Oct. 11, 2017) ; Fine Decorators, Inc. v. Argent Glob. (Bermuda), Ltd. , 919 So.2d 604, 606 (Fla. 3d DCA 2006) ; Hawkins v. James D. Eckert, P.A. , 738 So.2d 1002, 1002-03 (Fla. 2d DCA 1999).

The Krinsk standard is also consistent with Florida law pertaining to waiver.

Waiver is defined as "the voluntary and intentional relinquishment of a known right or conduct which implies the voluntary and intentional relinquishment of a known right." Roger E. Freilich, D.M.D., P.A. v. Shochet , 96 So.3d 1135, 1138 (Fla. 4th DCA 2012) (citation omitted). In analyzing whether waiver has occurred, "[t]he essential question is whether, under the totality of the circumstances, the defaulting party has acted inconsistently with the arbitration right." Id. (citation omitted). Thus, where an amendment unexpectedly changes the scope or theory of the claims, it cannot be said that the opposing party knowingly waived arbitration.

Changed circumstances, like in Krinsk , should result in the court re-evaluating whether the waiver covers the amended complaint. Waiver may not be irreversible and all-encompassing. Facts and circumstances do matter when evaluating the scope of the waiver. Factually, AAU waived the right to compel arbitration as to the first complaint, contrary to the trial court's finding. Only as to the second amended complaint do we make a separate inquiry as to whether there is a continuing waiver. Applying the Krinsk standard to this case, although the amended complaint added two new counts, it did not "unexpectedly change[ ] the scope or theory of [appellants'] claims." Krinsk , 654 F.3d at 1202. Rather, the issues in the amended complaint were substantially the same as the issues in the original complaint for which AAU had already waived arbitration.

For all of these reasons, I would reverse.

      The Stankoses' original complaint against AAU was styled below as an "Amended Complaint." Accordingly, any references in this opinion to the "original complaint" or the "initial complaint" will refer to the complaint styled below as the "Amended Complaint," and any references in this opinion to the "amended complaint" will refer to the complaint styled below as the "Second Amended Complaint."

      The amended complaint does not specify what the Stankoses' alleged "actual damages" are under the FDUTPA count. However, FDUTPA expressly excludes claims for personal injury or death. § 501.212(3), Fla. Stat. (2013).


source: Caselaw Access Project

author: Forst, J.

license: Public Domain

text:
    DARDEN RESTAURANTS, INC., a Florida Corporation, Duke Demier, an individual, and Jedler St. Paul, an individual, Appellant, v. Wilfred OSTANNE, Appellee.
    No. 4D17-3590
    District Court of Appeal of Florida, Fourth District.
    [October 3, 2018]
    Patrick G. DeBlasio, III, and Laurie M. Weinstein of Littler Mendelson, P.C., Miami, for appellant Darden Restaurants, Inc.
    Chris Kleppin and Chelsea A. Lewis of Glasser & Kleppin, P.A., Plantation, for appellee.
   Forst, J.

Darden Restaurants, Inc. ("Darden") appeals from the trial court's order denying its motion to compel arbitration and stay the underlying employment discrimination action filed by former employee Wilfred Ostanne. Darden argues the court erred in denying the motion, in part, because the parties had specifically agreed to delegate the issue of arbitrability to the arbitrator. We agree with this argument and reverse for an order submitting the issue of arbitrability to the arbitrator. Because this issue is dispositive, we decline to address the remaining issues.

Background

In 2010, the parties signed an agreement titled "Dispute Resolution Process" ("DRP"). The DRP was a stand-alone agreement, not part of an employment contract. The DRP provides for a four-step process to address and resolve "covered employment-related disputes": open door, peer review, mediation, and arbitration. The first three steps apply to all employment-related disputes or claims brought by the employee against the company (or vice versa) other than those listed as exceptions. The employee initiates the first two steps, and from there "the dissatisfied party can submit the matter to mediation." Thereafter, "[u]pon receiving the timely written notice that mediation has concluded without resolution ... and if the dispute involves a legal claim, either the Employee or the Company can submit the matter to binding arbitration."

Regarding arbitration, the DRP provides:

Only disputes which state a legal claim may be submitted to Arbitration, which is the fourth and final step of DRP. The arbitrator has the authority to dismiss disputes that do not state a legal claim. Examples of legal claims may include but are not limited to: claims that arise under the Civil Rights Act of 1964, Americans With Disabilities Act, Fair Labor Standards Act, Age Discrimination in Employment Act, Family Medical Leave Act, Employee Retirement Income Security Act, unfair competition, violation of trade secrets, any common law right or duty, or any federal, state or local ordinance or statute.
The DRP is the sole means for resolving covered employment-related disputes, instead of court actions. Disputes eligible for DRP must be resolved only through DRP, with the final step being binding arbitration heard by an arbitrator. This means DRP-eligible disputes will NOT BE RESOLVED BY A JUDGE OR JURY. Neither the Company nor the Employee may bring DRP-eligible disputes to court. The Company and the Employee waive all rights to bring a civil court action for these disputes.

The DRP also contains a delegation clause, which provides that "[t]he arbitrator has the sole authority to determine the eligibility of a dispute for arbitration and whether it has been timely filed ." (emphasis added).

In January 2017, Ostanne sued Darden and two Darden employees after filing charges of racial/ethnic discriminatory and retaliatory practices against Darden with the Florida Commission on Human Relations and the Equal Employment Opportunity Commission (EEOC). Ostanne alleged that he was subjected to ongoing racial slurs by co-workers; that management was aware but unwilling to act; that the slurs worsened after he complained; that two employees battered him; that he was overlooked for management positions for which he qualified; that he was demoted for complaining; that his hours were reduced to next to nothing; and that he was ostensibly fired despite Darden's denial of such, and then suspended indefinitely.

Counts 1 through 4 alleged Florida Civil Rights Act violations against Darden for the discharge, discriminatory terms and conditions of employment, retaliation, and creating a hostile work environment. Counts 5 and 6 alleged civil battery and assault against Darden and two of Ostanne's former co-workers. Ostanne alleged that the former co-workers' actions were so "open, obvious, and pervasive" that Darden knew or should have known of the conduct.

Darden moved to stay the proceedings and to compel arbitration based on the DRP. Over Ostanne's objection, the matter was first heard at a motion calendar hearing. Ostanne requested an evidentiary hearing, arguing he did not recall signing the agreement and Darden had waived arbitration by not following the dispute resolution process, i.e., Darden did not afford Ostanne the requisite peer review or mediation before seeking arbitration. Ostanne also suggested that Darden's position during the EEOC process, urging a "no cause finding," was inconsistent with arbitration.

Darden disputed the need for an evidentiary hearing as Ostanne had not furnished an affidavit in opposition to the motion to compel to create a factual issue. It also argued that its participation in the EEOC process was not a waiver. Darden did not address its failure to invoke peer review or mediation before arbitration, which as the DRP is drafted, are conditions precedent to arbitration. The trial court summarily denied Darden's motion without prejudice.

Darden then filed a renewed motion to compel arbitration, which incorporated its first motion and also pointed to the DRP's "delegation clause." Ostanne again responded that a valid agreement to arbitrate did not exist, and that Darden had waived arbitration. He attached a supporting affidavit stating that he was unaware of the DRP, contending that it was never reviewed or discussed with him.

At the hearing, Darden directed the court to Ostanne's 2010 signing of the DRP and the delegation clause which provides that the arbitrator is to decide issues of arbitrability. Darden also cited case law which holds that the party opposing arbitration must specifically challenge the delegation provision (not just the arbitration provision itself), or "the delegation provision remains enforceable as a matter of law." See , e.g. , Allied Prof'ls Ins. Co. v. Fitzpatrick , 169 So.3d 138, 141-42 (Fla. 4th DCA 2015) (citing, e.g., Rent-A-Center, W., Inc. v. Jackson , 561 U.S. 63, 72, 130 S.Ct. 2772, 177 L.Ed.2d 403 (2010) (unless the plaintiff "challenged the delegation provision specifically, we must treat it as valid ..., leaving any challenge to the validity of the [arbitration] [a]greement as a whole for the arbitrator.") ).

Ostanne opposed the motion to compel on six grounds: (1) Darden waived the "delegation clause" argument for failure to raise it during the first hearing; (2) Darden waived the right to arbitrate having failed to follow the "mandatory" steps preceding arbitration; (3) the DRP contains exceptions to arbitration, some of which were raised in the complaint (though Ostanne did not identify any); (4) the Florida Civil Rights Act "itself states that the claims can't go to arbitration" since it provides that the right to trial by jury is preserved; (5) Darden acted inconsistently with and waived arbitration when it asked the agency to dismiss the charge during the administrative proceedings; and (6) because the claims did not concern a breach of the employment contract, they did not fall within the clause.

Darden replied that it did not waive its "delegation clause" argument because the court did not address the merits of the motion at the first hearing. Darden maintained that the sole issue for the court was whether Ostanne signed an agreement which contained an arbitration clause with a delegation provision.

The trial court summarily denied Darden's motion to compel arbitration.

Analysis

Darden argues the court erred in denying its motion to compel arbitration because, among other reasons, the parties' DRP agreement specifically delegated the issue of arbitrability to the arbitrator. We apply the de novo standard of review. See Allied Prof'ls Ins. Co. , 169 So.3d at 141 (citing BDO Seidman, LLP v. Bee , 970 So.2d 869, 874 (Fla. 4th DCA 2007) ("[T]he standard of review applicable to the trial court's construction of an arbitration provision, and to its application of the law to the facts found, is de novo.") (citation omitted) ).

We agree with Darden's argument. The plain language of the DRP's arbitration provision states that "[t]he arbitrator has the sole authority to determine the eligibility of a dispute for arbitration and whether it has been timely filed." Ostanne did not challenge the delegation clause itself in his discrimination lawsuit. "Absent a direct challenge, we must treat the delegation provision as valid and allow the arbitrator to determine the issue of arbitrability." Newman for Founding Partners Stable Value Fund, LP v. Ernst & Young, LLP , 231 So.3d 464, 467 (Fla. 4th DCA 2017) (quoting Angels Senior Living at Connerton Ct., LLC v. Gundry , 210 So.3d 257, 258 (Fla. 2d DCA 2017) ); see also Allied Prof'ls Ins. Co. , 169 So.3d at 141-42 (citing Rent-A-Center, W., Inc. , 561 U.S. at 74, 130 S.Ct. 2772 ).

We further agree with Darden's contention that its participation in the EEOC process was not a waiver. An employer does not waive arbitration by participating in EEOC proceedings. See Gordon v. Shield , 41 So.3d 931, 934 (Fla. 4th DCA 2010) (citing Marie v. Allied Home Mortg. Corp. , 402 F.3d 1, 16 (1st Cir. 1998) ).

Lastly, we note that each party has accused the other of failing to follow the four-step dispute resolution process. To the extent that Darden has failed to comply with conditions precedent to arbitration, the delegation clause leaves that issue to be addressed by the arbitrator. See Cooper v. Fine , 705 So.2d 131, 131 (Fla. 4th DCA 2005) (finding that "whether conditions precedent to arbitration were fulfilled ... is a question for the arbitrator").

Conclusion

Based on the foregoing, we reverse the trial court's order denying Darden's motion to compel arbitration and remand for entry of an order submitting the issue of arbitrability to the arbitrator. See Allied Prof'ls Ins. Co. , 169 So.3d at 142.

Reversed and remanded.

Taylor and Conner, JJ., concur.

      See Arrasola v. MGP Motor Holdings, LLC , 172 So.3d 508, 514 (Fla. 3d DCA 2015) ("The Revised Florida Arbitration Code authorizes the trial court 'summarily to decide' a motion to compel arbitration 'unless it finds that there is no enforceable agreement to arbitrate.' ") (citing § 682.03(1)(b), Fla. Stat. (2014) ).

      As stated, the DRP provides that the employee initiates the first two steps (open door and peer review) of the four-step process.


author: Damoorgian, J.

text:
    Marie C. CADET, Appellant, v. State of Florida, DEPARTMENT OF HEALTH, Appellee.
    No. 4D17-3431
    District Court of Appeal of Florida, Fourth District.
    [October 17, 2018]
    Luis A. Bonilla of Bonilla Law Associates, West Palm Beach, for appellant.
    Christine E. Lamia, Chief Appellate Counsel, Tallahassee, for appellee.
   Damoorgian, J.

Appellant, Marie Cadet, appeals a final administrative order from the Department of Health, Board of Nursing ("the Board") revoking her nursing license. Because the undisputed evidence was insufficient to support a charge warranting revocation as a penalty, we reverse and remand for further proceedings.

Appellant was a Licensed Practical Nurse ("LPN") who worked for a nursing home. Following a medical incident, Appellant was transported from her home to an emergency room along with her medications as gathered by paramedics. Upon Appellant's arrival at the emergency room, a nurse inventoried Appellant's medications and noted that they contained several expired packs of non-narcotic prescriptions in other people's names. The emergency room reported this information to the Department of Health ("DOH") which commenced an investigation.

As part of its investigation, the DOH interviewed the emergency room nurse who inventoried Appellant's medication, the paramedics who transported Appellant, Appellant's employer, and Appellant. In her interview, Appellant admitted that she took expired medications from her place of employment rather than disposing of them because she could not always afford her own medications. Based on its investigation, the DOH filed an administrative complaint against Appellant with the Board alleging that Appellant was subject to discipline for: 1) engaging in unprofessional conduct by misappropriating drugs under section 464.018(1)(h) of the Florida Statutes and Rule 64B9-8.005(2) of the Florida Administrative Code (Count I), and 2) failing to meet the minimal standards of acceptable and prevailing nursing practices under section 464.018(1)(n) of the Florida Statutes (Count II). Specifically, in Count I, the DOH alleged that Appellant "engaged in acts of misappropriating drugs," by "removing [the expired drugs] from" the nursing home where she worked. In Count II, the DOH alleged that Appellant "failed to meet the minimal standards of acceptable and prevailing nursing practice" by "failing to return [the expired drugs] to [the nursing home's] pharmacy."

Appellant did not respond to the DOH's complaint or attend the noticed hearing in front of the Board. Based on Appellant's failure to appear, the DOH's investigative report and exhibits were admitted into evidence and the facts set forth in the DOH's complaint were deemed admitted. The Board then found that Appellant engaged in unprofessional conduct under section 464.018(1)(h) and failed to meet the minimal standards of acceptable and prevailing nursing practices under section 464.018(1)(n). As a penalty, it revoked Appellant's nursing license. On appeal, Appellant argues that the evidence did not support the Board's legal conclusion that Appellant failed to meet the minimal standards of nursing practices under section 464.018(1)(n) of the Florida Statutes as alleged in Count II of the DOH's administrative complaint. Therefore, she argues that the Board violated her due process rights by imposing a higher than permissible penalty. Based on the governing statutes and regulations, we agree.

The Florida Legislature has granted the Board the authority to adopt rules and implement the provisions of the Nurse Practice Act in order to ensure that "every nurse practicing in this state meets minimum requirements for safe practice." §§ 464.002, .006, Fla. Stat. (2016). To that end, the Legislature also passed section 464.018, which outlines certain acts which "constitute grounds for denial of a license or disciplinary action" in the nursing license context. § 464.018, Fla. Stat. (2016). Based on the Legislature's delegation of authority, the Board has wide discretion in interpreting and enforcing section 464.018. Sullivan v. Fla. Dep't of Envtl. Prot. , 890 So.2d 417, 420 (Fla. 1st DCA 2004). However, this discretion is not unfettered and courts are not required to defer to implausible and unreasonable interpretations as adopted by an administrative agency. Id. Further, because disciplinary statutes and rules are penal in nature, they must be construed strictly with any ambiguities resolved in favor of the licensee. See State ex rel. Vining v. Fla. Real Estate Comm'n , 281 So.2d 487, 491 (Fla. 1973) ; Bach v. Fla. State Bd. of Dentistry , 378 So.2d 34, 36 (Fla. 1st DCA 1980) ; Lester v. Dep't of Prof'l & Occupational Regulations, State Bd. of Med. Exam'rs , 348 So.2d 923, 925 (Fla. 1st DCA 1977).

Here, based on Count II of the DOH's complaint, the Board found that Appellant was subject to discipline under section 464.18(1)(n) of the Florida Statutes for failing "to meet minimal standards of acceptable and prevailing nursing practice, including engaging in acts for which the nurse is not qualified by training or experience." Although there is no Board rule establishing what constitutes failing to "meet minimal standards" of nursing practice, the "practice of practical nursing" is statutorily defined as:

[T]he performance of selected acts, including the administration of treatments and medications, in the care of the ill, injured, or infirm; the promotion of wellness, maintenance of health, and prevention of illness of others under the direction of a registered nurse, a licensed physician, a licensed osteopathic physician, a licensed podiatric physician, or a licensed dentist; and the teaching of general principles of health and wellness to the public and to students other than nursing students. A practical nurse is responsible and accountable for making decisions that are based upon the individual's educational preparation and experience in nursing.

§ 464.003(19), Fla. Stat. (2016).

In Appellant's case, nothing about the conduct the DOH alleged and proved as grounds for Count II had anything to do with the conduct outlined in the foregoing definition. The DOH did not allege or prove that Appellant improperly administered or failed to administer drugs, exceeded the scope of her training, or did anything implicating patient care. Rather, the DOH's allegation of "failing to return" the drugs established that Appellant misappropriated the drugs by failing to return expired medications to her employer's pharmacy.

The act of "misappropriating drugs" is defined by Board rule as "unprofessional conduct," which in turn is grounds for discipline under section 464.018(1)(h) of the Florida Statutes. Fla. Admin. Code R. Rule 64B9-8.005(2) (2016). Unprofessional conduct by way of misappropriating drugs was the grounds for discipline alleged in Count I of the DOH's complaint. Thus, the grounds for discipline asserted in Count I totally encompassed the acts Appellant was alleged and proven to have committed. Barr v. Dep't of Health, Bd. of Dentistry , 954 So.2d 668, 668 (Fla. 1st DCA 2007) (holding that a dentist could not be disciplined both for failing "to meet the minimum standards of performance in diagnosis and treatment" and for a "records keeping violation" for conduct which was totally encompassed by the records keeping violation charge).

Based on the governing statutes and rules, the Board's finding that Appellant fell below the minimal standards of nursing practices by "failing to return" expired drugs to her employer's pharmacy was clearly erroneous. This error resulted in the revocation of Appellant's license, a higher than permissible penalty and, therefore, a violation of Appellant's due process rights. Fla. Admin. Code R. 64B9-8.006(3)(f)1. (2016) (providing that for the first offense of engaging in unprofessional conduct, the minimum penalty is a "[r]eprimand, $250 fine, and continuing education" and the maximum penalty is a "$500 fine and suspension with IPN evaluation or probation"). Accordingly, we reverse the Board's final order as it pertains to Count II of the DOH's administrative complaint, affirm the order as it pertains to Count I, and remand to the Board for reconsideration of Appellant's penalty.

Reversed and remanded.

Ciklin and Conner, JJ., concur.

      Although Appellant did not appear or make any arguments below, a due process violation in the administrative law context constitutes fundamental error which may be raised for the first time on appeal. See Georges v. Dep't of Health , 75 So.3d 759, 762 (Fla. 2d DCA 2011) ; Henderson v. Dep't of Health, Bd. of Nursing , 954 So.2d 77, 81 n.2 (Fla. 5th DCA 2007) (noting that "[m]atters not excepted to or raised properly before a licensing board may still be raised where an appellant can show ... fundamental error").

      Indeed, the Board's own rule history reflects that the misappropriation of drugs does not qualify as grounds for discipline under the failure to meet minimal standards provision. Prior to 2009, Rule 64B9-8.005 specified some acts that constituted failure to meet minimal standards of nursing practices, one of which was the misappropriation of drugs. Fla. Admin. Code R. Rule 64B9-8.005(2)(c) (2006). However, in 2009, the Board amended the rule by removing any reference to "failing to meet or departing from minimal standards of acceptable and prevailing nursing practice" and defined "misappropriating drugs" as unprofessional conduct instead. Fla. Admin. Code R. Rule 64B9-8.005(2) (2009). In doing so, the Board specified that the "purpose of the amendment [was] ... to eliminate actions that constitution violations of specific provisions of Chapter 464 and Chapter 456." Vol. 35/08 Fla. Admin. Weekly (Feb. 27, 2009). In other words, by its own actions, the Board eliminated "misappropriating drugs" as a violation of the minimal standards provision contained in section 464.018(1)(n). It is also worth noting that when a misappropriation of drugs was classified as a standard of care violation, the maximum penalty for a first offense was a fine and suspension. See Fernandez v. Fla. Dep't of Health, Bd. of Nursing , 82 So.3d 1202, 1204 (Fla. 4th DCA 2012).


author: Gerber, C.J.

text:
    Beverly A. ELLIS and Frederick J. Ellis, Appellants, v. U.S. BANK TRUST, N.A., as Trustee for LSF9 Master Participation Trust, Appellee.
    No. 4D17-2127
    District Court of Appeal of Florida, Fourth District.
    [October 24, 2018]
    Amanda L. Mollica and Kendrick Almaguer of The Ticktin Law Group, Deerfield, for appellants.
    David Rosenberg, Cynthia L. Comras and Jarrett Cooper of Robertson, Anschutz & Schneid, P.L., Boca Raton, for appellee.
   Gerber, C.J.

The borrowers appeal from the trial court's order denying the borrowers' motion to tax costs and attorney's fees. We affirm the trial court's order as to the borrowers' attorney's fees pursuant to Nationstar Mortgage LLC v. Glass , 219 So.3d 896, 899 (Fla. 4th DCA 2017) ("A party that prevails on its argument that dismissal is required because the plaintiff lacked standing to sue upon the contract cannot recover fees based upon a provision in that same contract."), review granted, SC17-1387, 2018 WL 2069328 (Fla. Feb. 13, 2018). We affirm the trial court's order as to the borrowers' taxable costs because the borrowers did not preserve this request by evidence or argument at the hearing on the motion. See Aills v. Boemi , 29 So.3d 1105, 1110 (Fla. 2010) ("To be preserved for appeal, the specific legal ground upon which a claim is based must be raised at trial and a claim different than that will not be heard on appeal.") (alterations omitted).

Affirmed.

Levine and Klingensmith, JJ., concur.


author: LAGOA, J.

text:
    The REPUBLIC OF ECUADOR, Appellant, v. Roberto Isaias DASSUM and William Isaias Dassum, Appellees.
    No. 3D15-2622
    District Court of Appeal of Florida, Third District.
    Opinion filed December 27, 2017
    Squire Patton Boggs (US) LLP, and Alvin B. Davis, Digna B. French, and Rafael Langer-Osuna, for appellant.
    White & Case LLP, and Raoul G. Cantero, Maria J. Beguiristain, and Jesse L. Green ; Lewis Tein PL, and Michael R. Tein, for appellees.
    Before SUAREZ, LAGOA, and LUCK, JJ.
   LAGOA, J.

The Republic of Ecuador ("Republic") appeals from a final judgment entered in favor of brothers Roberto Isaias Dassum and William Isaias Dassum (the "Isaiases"). For the reasons set forth below, we reverse and remand for the trial court to hold a trial solely on damages. Because the liability of the Isaiases has been determined through an act of state, the only issue that remains is the amount of indebtedness, if any, owed by the Isaiases to the Republic.

I. FACTUAL AND PROCEDURAL HISTORY

This is the second time the parties have appeared before this Court in the Republic's effort to obtain a money judgment against the Isaiases for debts allegedly due from the failure of the Ecuadorian bank, Filanbanco S.A. ("Filanbanco"). See Republic of Ecuador v. Isaias Dassum (Isaias I ), 146 So.3d 58 (Fla. 3d DCA 2014). A brief factual and procedural history is necessary in order to discuss the current posture of this case before this Court.

The Isaiases were senior administrators and indirect shareholders of Filanbanco. On December 2, 1998, as a result of a liquidity crisis, Filanbanco was placed into restructuring under the jurisdiction and control of the Agencia de Garantía de Depósitos ("AGD"), an agency similar to the Federal Deposit Insurance Corporation in the United States. See Isaias I, 146 So.3d at 60. On May 8, 2001, the accounting firm of Deloitte & Touche submitted a report (the "Deloitte Report") to the Ecuadorian Superintendent of Banks, assessing Filanbanco's losses as of December 2, 1998, at $661.5 million.

Article 29 of Ecuador's Act for Economic Reorganization in the Area of Taxes and Finance ("Article 29"), enacted in 2002, provides that administrators who have declared false technical equity and altered balance sheets shall guarantee deposits in the financial institution with their personal equity. On February 26, 2008, the Banking Board of Ecuador passed Resolution No. JB-2008-1084 ("JB-1084"), which authorized Ecuador's Superintendent of Banks and Insurance to approve the Deloitte Report. In March 2008, the Superintendent of Banks and Insurance passed Resolution No. SBS-2008-185 ("SBS-185"), approving the Deloitte Report.

On July 8, 2008, the AGD issued Resolution Number AGD-UIO-GG-2008-12 ("AGD-12"), finding the Isaiases, as administrators of Filanbanco, liable for the bank's losses and ordering the seizure of their property. Specifically, AGD-12 states that "the declaration of the unrealistic technical equity and the alteration of the balances in Filanbanco on the behalf of its administrators, hid the real situation of this financial institution and the losses cut on December 2, 1998." AGD-12 also recognizes the losses set forth in JB-1084. Invoking Article 29, Article 1 of AGD-12 orders "the seizure of all assets of properties belonging to administrators shareholders of Filanbanco S.A. until December 2, 1998 including the assets belonging to their property." The Isaiases are specifically listed as administrators. Portions of the Isaiases' property in Ecuador were seized by the AGD.

On April 29, 2009, the AGD filed a complaint against the Isaiases in Miami-Dade Circuit Court. The AGD alleged that the Isaiases still owed the AGD at least $200 million and that the Isaiases have at least $20 million in publicly-known property in Miami-Dade County. Specifically, the AGD alleged that "[a]s former shareholders, officers, executives and administrators of Filanbanco, S.A., the Isaias brothers are liable to the AGD under Article 29 for the $661.5 Million Filanbanco Loss, less any sums recovered from the AGD's seizure and sale of their assets in Ecuador." The Isaiases filed an answer, affirmative defenses, and counterclaims.

The Isaiases filed a motion for summary judgment asserting, among other things, that the Republic's actions constituted an attempt to summarily confiscate the Isaiases' property located in Miami-Dade County. See Isaias I, 146 So.3d at 60-61. The trial court entered summary judgment in favor of the Isaiases, and the Republic appealed to this Court. As this Court stated in Isaias I, the issue on appeal was "whether the extraterritoriality exception to the act of state doctrine bars the Republic's claims in Florida to recover some $200 million in alleged damages following the failure of Ecuador's (formerly) largest bank, Filanbanco." Id. at 59. This Court reversed and remanded for further proceedings, concluding that "(1) the record demonstrates genuine issues of fact regarding the allegedly-remaining indebtedness of the Isaiases to the Republic; and (2) the Republic's complaint seeking remedies in Florida is not based, as argued by the Isaiases, on a 'confiscatory decree of a foreign sovereign ... acting beyond its territorial dominion.' " Id.

The matter proceeded to a bench trial at which the Republic presented the testimony of an expert in Ecuadorian law who authenticated the Republic's acts of state-Article 29 and the various Resolutions at issue. The Isaiases presented witnesses and bank records in an attempt to prove they committed no wrongdoing and did not cause any loss to Filanbanco. After a three-day trial, the trial court entered final judgment in favor of the Isaiases, finding that the Republic lacked standing to bring suit and that the lawsuit was barred by the statute of limitations. This appeal ensued.

II. STANDARD OF REVIEW

Pure questions of law are reviewed de novo. The trial court's findings that the Republic lacked standing and that the Republic's suit was barred by the statute of limitations involve issues of law. Herbits v. City of Miami, 207 So.3d 274, 281 (Fla. 3d DCA 2016) (stating that standing is a pure question of law that is reviewed de novo); Nationstar Mortg., LLC v. Sunderman, 201 So.3d 139, 140 (Fla. 3d DCA 2015) (stating that a legal issue involving a statute of limitations question is reviewed de novo). As such, this Court's standard of review is de novo.

To the extent the final judgment addresses issues of foreign law, this Court's standard of review is also de novo. Transportes Aereos Nacionales, S.A. v. De Brenes, 625 So.2d 4, 5 (Fla. 3d DCA 1993) ("A trial court's determination of foreign law is treated as a ruling on a question of law over which an appellate court exercises plenary review.").

III. ANALYSIS

The trial court's entry of final judgment in favor of the Isaiases was based upon two specific findings: (1) that the Republic lacked standing to bring suit; and (2) that the lawsuit was barred by the statute of limitations. We find that the trial court erred in both findings, and we address each issue separately.

A. Standing

With regard to the issue of standing, the trial court found that the Republic lacked standing and authority to sue because it failed to present evidence that the Republic had assumed the right to pursue this lawsuit from the AGD. We hold that the trial court erred in this finding because the Isaiases waived the issue of standing.

It is well-established that standing is an affirmative defense that must be raised by the defendant to avoid waiver.

Krivanek v. Take Back Tampa Political Comm., 625 So.2d 840, 842 (Fla. 1993) ; Cong. Park Office Condos II, LLC v. First-Citizens Bank & Tr. Co., 105 So.3d 602, 607 (Fla. 4th DCA 2013) (noting that lack of standing is an affirmative defense which must be pled to avoid waiver); Schuster v. Blue Cross & Blue Shield of Fla., Inc., 843 So.2d 909, 912 (Fla. 4th DCA 2003) ("There is no question that lack of standing is an affirmative defense that must be raised by the defendant and that the failure to raise it generally results in waiver."). The Isaiases do not and cannot dispute that they did not plead the affirmative defense of standing below.

Raised at oral argument for the first time, the Isaiases argued that the issue of standing was tried by consent of the parties. We find this argument without merit. In order for a trial court to enter judgment upon an issue that was not pled, the parties must provide express or implied consent. See, e.g., Dysart v. Hunt, 383 So.2d 259, 260 (Fla. 3d DCA 1980). It is undisputed-and the Isaiases conceded this point at oral argument-that the Republic did not expressly consent to trying the issue of standing. As previously noted, consent may also be implied. For example, "[a]n issue is tried by consent where the parties fail to object to the introduction of evidence on the issue." Dep't of Revenue v. Vanjaria Enters., 675 So.2d 252, 254 (Fla. 5th DCA 1996). The Isaiases do not point to the admission of unobjected-to evidence on the issue of standing such that the matter could be construed as tried by implied consent. Because the issue of standing was not pled as an affirmative defense and was not tried by consent, we find the trial court erred in entering judgment in favor of the Isaiases on this ground. See Cortina v. Cortina, 98 So.2d 334, 337 (Fla. 1957) ("It is fundamental that a judgment upon a matter entirely outside of the issues made by the pleadings cannot stand.").

B. Statute of Limitations

As noted above, the trial court also found that the Republic's action was barred by the four-year limitations period set forth in sections 95.11(3)(f) and (p), Florida Statutes (2016). In making its finding, the trial court reasoned that there was no evidence that the Isaiases committed any wrongful act after December 2, 1998-the date Filanbanco was placed into restructuring and the last day the Isaiases were Filanbanco's administrators-and therefore, more than ten years elapsed between the last possible date on which a wrongful act could have occurred and the filing of the lawsuit on April 29, 2009. On appeal, the Republic argues that AGD-12 established that the Isaiases' liability commenced on July 8, 2008, and that the trial court violated the act of state doctrine when it found that the statute of limitations commenced, at the latest, on December 2, 1998, rather than on July 8, 2008. We agree with the Republic.

Under the act of state doctrine, " 'the act within its own boundaries of one sovereign State ... becomes ... a rule of decision for the courts of this country.' " W.S. Kirkpatrick & Co. v. Envtl. Tectonics Corp., Int'l., 493 U.S. 400, 406, 110 S.Ct. 701, 107 L.Ed.2d 816 (1990) (quoting Ricaud v. Am. Metal Co., 246 U.S. 304, 310, 38 S.Ct. 312, 62 L.Ed. 733 (1918) ); see also Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 416, 84 S.Ct. 923, 11 L.Ed.2d 804 (1964). For that reason, "the act of state doctrine requires American courts to presume the validity of 'an official act of a foreign sovereign performed within its own territory.' " Republic of Austria v. Altmann, 541 U.S. 677, 713, 124 S.Ct. 2240, 159 L.Ed.2d 1 (2004) (Breyer, J., concurring) (quoting W.S. Kirkpatrick, 493 U.S. at 405, 110 S.Ct. 701 ); see also Sabbatino, 376 U.S. at 401, 84 S.Ct. 923 ("The act of state doctrine ... precludes the courts of this country from inquiring into the validity of the public acts a recognized foreign sovereign power committed within its own territory.").

"Act of state issues only arise when a court must decide -that is, when the outcome of the case turns upon-the effect of official action by a foreign sovereign. When that question is not in the case, neither is the act of state doctrine." W.S. Kirkpatrick, 493 U.S. at 406, 110 S.Ct. 701 (emphasis in original). As the Supreme Court has explained, the doctrine applies when "the relief sought or the defense interposed would have required a court in the United States to declare invalid the official act of a foreign sovereign performed within its own territory." Id. at 405, 110 S.Ct. 701.

The Isaiases' liability for losses to Filanbanco was established by an act of state on July 8, 2008. Specifically, on that date, the AGD issued AGD-12, which found that "the declaration of the unrealistic technical equity and the alteration of the balances in Filanbanco on the behalf of its administrators, hid the real situation of this financial institution and the losses cut on December 2, 1998." AGD-12 goes on to list the Isaiases, among others, as administrators of Filanbanco. Invoking Article 29, Article 1 of AGD-12 proceeds to "order the seizure of all assets of properties belonging to administrators shareholders of Filanbanco S.A. until December 2, 1998 including the assets belonging to their property." Because the Isaiases' liability for losses to Filanbanco was established on July 8, 2008, when the AGD issued AGD-12, we find that the trial court violated the act of state doctrine when it found that December 2, 1998, was the date on which the Isaisases' liability accrued for statute of limitation purposes.

Pursuant to the act of state doctrine, neither the trial court nor this Court may inquire into the validity of the Republic's July 8, 2008, determination of liability as set forth in AGD-12 or find otherwise. The trial court's finding that liability accrued on December 2, 1998, rather than on July 8, 2008, is a clear violation of the act of state doctrine as the trial court rejected the validity of the Republic's public act. See FOGADE v. ENB Revocable Tr., 263 F.3d 1274, 1296 (11th Cir. 2001) (finding that the act of state doctrine properly applied to bar the defendants' affirmative defense challenging the lawfulness of the Venezuelan government agency's intervention of the Venezuelan company-plantififf); Bank Tejarat v. Varsho-Saz, 723 F.Supp. 516, 521-22 (C.D. Cal. 1989) (striking the affirmative defenses of setoff and unclean hands because adjudication of those affirmative defenses would require the court to judge the legality of acts of a foreign state completed within that state's territory in violation of the act of state doctrine).

Because the act of state doctrine compels this Court to construe the statute of limitations to begin to run on July 8, 2008-the date the Isaiases' liability for losses to Filanbanco was established in AGD-12, the Republic's act of state-we find that the complaint filed less than a year later on April 29, 2009, was not barred by the four-year statute of limitations set forth in section 95.11(3)(p), Florida Statutes.

C. Proceedings on Remand

To avoid any further confusion, the proceedings on remand shall be limited solely to the issue of damages. Because an act of state determined that the Isaiases are liable, the Republic is not required to prove the Isaiases' liability regarding the losses to Filanbanco. In other words, the Isaiases' liability for the losses to Filanbanco has been established in the Republic's act of state-AGD-12-and pursuant to the act of state doctrine, no court in this country may find otherwise.

As this Court noted in Isaias I, however, this does not mean that the Republic is entitled to automatically seize the Isaiases' property in Miami-Dade County. Isaias I, 146 So.3d at 62-63. The Republic's claims that the Isaiases still owe money to the Republic are "subject to proof as in any claim by a foreign sovereign against one of its citizens residing in the United States." Id. at 62. Indeed, the Isaiases have stated numerous affirmative defenses as to damages, including accord and satisfaction, release, and payment, all of which, if not barred by the act of state doctrine, may be asserted on remand and considered by the trial court.

IV. CONCLUSION

For the reasons stated, we reverse the final judgment entered in favor of the Isaiases and remand the matter to the trial court for a trial on damages. Because the liability of the Isaiases has been determined through an act of state, the only issue that remains to be tried is the amount of indebtedness, if any, owed by the Isaiases to the Republic.

Reversed and remanded for further proceedings.

      All quotations of relevant Articles, Resolutions and acts of state are from translations of the documents from Spanish to English contained in the Record.

      Article 29 states as follows:
      In cases where administrators have declared an unreal technical equity, altered balance sheet figures, or charged interest rates on interest, they shall guarantee deposits in the financial institution with their personal equity, and the Deposit Guarantee Agency may seize property publicly known to belong to those shareholders and transfer it to a security trust pending establishment of its true ownership, in which case it shall become part of the resources of the Deposit Guarantee Agency and may not be disposed of during this period.

      Article 5 of AGD-12 states:
      Those who were Administrators of Filanbanco S.A. on or before December 2nd. 1998, and as for ordinance of Article 29 of the Reorganization of Economic matters in the Financial Tax Area are subject to these resolutions, are as follows: Roberto Isaias Dassum , Executive President; William Isaias Dassum Vice-Executive President ....
      (emphasis added).

      By this point in time, the Isaiases were located in Miami. See Isaias I, 146 So.3d at 60 ("In 2003, Ecuador issued arrest warrants for the Isaiases, who were by then in Miami.").

      The Isaiases asserted numerous affirmative defenses: 1) failure to state a cause of action; 2) statute of limitations; 3) laches; 4) fraud; 5) illegality; 6) comity; 7) no judgment; 8) payment; 9) failure to furnish proof of loss; 10) release; 11) estoppel; 12) accord and satisfaction; 13) contributory negligence; and 14) exhaustion of administrative remedies.

      In March 2010, the Isaiases and the Republic each filed a motion to substitute the Republic for the AGD because the AGD was dissolved pursuant to the laws of Ecuador on December 31, 2009. On March 19, 2010, the trial court entered an order substituting the Republic for the AGD.

      The extraterritorial exception to the act of state doctrine applies when another state attempts to confiscate property located within the United States:
      There is, however, "a well-established corollary to the act of state doctrine, the so-called 'extraterritorial exception.' " Tchacosh Co., Ltd. v. Rockwell Int'l Corp., 766 F.2d 1333, 1336 (9th Cir. 1985). Under that exception, "when property confiscated is within the United States at the time of the attempted confiscation, our courts will give effect to acts of state 'only if they are consistent with the policy and law of the United States.' " Republic of Iraq v. First Nat'l City Bank, 353 F.2d 47, 51 (2d Cir.1965) (Friendly, J.).
      Villoldo v. Castro Ruz, 821 F.3d 196, 202 (1st Cir. 2016).

      It is undisputed that Article 29 and Resolutions JB-1084, SBS-185, and AGD-12, constitute acts of state. In its final judgment, the trial court found that Article 29 and the Resolutions "are Acts of State of the Republic of Ecuador," and the Isaiases do not contend otherwise.

      Sections 95.11(3)(f) and (p), states:
      Actions other than for recovery of real property shall be commenced as follows: ...
      (3) Within four years.-
      (f) An action founded on a statutory liability.
      ....
      (p) Any action not specifically provided for in these statutes.

      The Isaiases' argument that Isaias I directed that the Republic prove both liability and damages on remand is without merit. First, a finding of no liability would be in violation of the act of state doctrine, as AGD-12 has already established the Isaiases' liability. Second, the Isaiases' reliance on language in Isaias I that the "validity" of the Republic's claim was subject to proof is misplaced. The issue before this Court in Isaias I was whether the "extraterritoriality exception" to the act of state doctrine applied to the Republic's claim. Isaias I, 146 So.3d at 61. This Court held that it did not, and reversed the summary judgment in favor of the Isaiases because issues of fact remained as to the Isaiases' "allegedly-remaining indebtedness to the Republic." Id. at 63. Given the issue on appeal in Isaias I and this Court's holding in Isaias I, the Court's reference to the "validity" of the Republic's claims is a reference to the amounts allegedly still due, not the underlying liability established in AGD-12.


text:
    Rodney CHESTNUT, Appellant, v. NATIONSTAR MORTGAGE LLC, Appellee.
    No. 3D17-1752
    District Court of Appeal of Florida, Third District.
    Opinion filed August 15, 2018
    The Law Office of Eric Scott Brumfield, Esq., and Eric Scott Brumfield, Miami, for appellant.
    McGuireWoods LLP, and Sara F. Holladay-Tobias, Emily Y. Rottmann, and Jason R. Bowyer (Jacksonville), for appellee.
    Before LAGOA, LOGUE, and SCALES, JJ.
   LAGOA, J.

Appellant, Rodney Chestnut ("Chestnut"), appeals from the trial court's order denying his Motion to Quash Service of Process. Because Chestnut waived his right to contest service of process, we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

Of significance to this appeal, Nationstar Mortgage LLC ("Nationstar") sought leave of court to add as additional defendants to a foreclosure action the "unknown heirs, beneficiaries, devisees and all other parties claiming an interest" in the Estate of Charles Chestnut, the deceased owner of the property at issue in the foreclosure action. On July 8, 2015, the trial court granted Nationstar's motion, thereby adding Chestnut, an heir to the Estate of Charles Chestnut, as a defendant to the foreclosure action.

On February 25, 2016, Chestnut, through his counsel, filed a Motion to Dismiss solely challenging Nationstar's standing. The trial court denied the motion and directed Chestnut to answer the Amended Complaint. On February 13, 2017, Chestnut filed his Answer and Affirmative Defenses and asserted as an affirmative defense for the first time that he had "never been served with a copy of the complaint."

On July 26, 2017, Chestnut filed a Verified Motion to Quash Service of Process. The trial court denied the motion to quash without a hearing, stating that "Defendant appeared in the case and waived any issue regarding service." Subsequently, the trial court entered a written order denying Chestnut's motion to quash. This appeal ensued.

II. STANDARD OF REVIEW

This Court has jurisdiction to entertain the appeal as "[a]n order on a motion to quash service of process is one that determines personal jurisdiction and is thus appealable." Vaughn v. Wells Fargo Bank, N.A., 153 So.3d 969, 970 n.1 (Fla. 5th DCA 2015). "The determination of whether the trial court properly ruled on a motion to quash service of process for lack of personal jurisdiction is a question of law, which we review de novo." Mecca Multimedia, Inc. v. Kurzbard, 954 So.2d 1179, 1181 (Fla. 3d DCA 2007).

III. ANALYSIS

Florida Rule of Civil Procedure 1.140(b) provides that a party waives certain defenses, such as insufficiency of service of process, if not asserted either in a pre-answer motion or, if no pre-answer motion is filed, the answer itself. See Dolan v. Dolan, 81 So.3d 558, 559-60 (Fla. 3d DCA 2012) (holding that the wife waived insufficiency of service of process when she filed a motion to dismiss without raising this defense in that motion and could not resurrect insufficiency of service of process in a second motion to dismiss after first motion had been denied); Lennar Homes, Inc. v. Gabb Constr. Servs., Inc., 654 So.2d 649, 651 (Fla. 3d DCA 1995) (finding that "[a] defendant who fails to contest the sufficiency of service of process at the inception of the case, whether by motion or responsive pleading, has waived this defense once he or she has entered a general appearance"); Parra v. Raskin, 647 So.2d 1010, 1011 (Fla. 3d DCA 1994) (holding that mortgagor's failure to raise service of process defense in pre-answer motion to dismiss waived that defense); Consolidated Aluminum Corp. v. Weinroth, 422 So.2d 330, 331 (Fla 5th DCA 1982) ("A defendant wishing to contest personal jurisdiction must do so in the first step taken in the case, whether by motion or in a responsive pleading, or that issue is waived and defendant has submitted himself to the court's jurisdiction.").

Here, Chestnut filed a pre-answer motion to dismiss solely challenging Nationstar's standing to bring suit. Chestnut's motion to dismiss, however, failed to raise the sufficiency of service of process. The trial court then denied Chestnut's motion to dismiss and ordered Chestnut to answer the complaint. Cf. Cepero v. Bank of N.Y. Mellon Tr. Co., N.A., 189 So.3d 204, 205, 207 (Fla. 4th DCA 2016) (holding that the defendants did not waive their claim of insufficiency of service of process as they amended their motion to dismiss to raise, for the first time, insufficiency of service of process prior to the trial court ruling on their amended motion to dismiss). By failing to raise service of process in his pre-answer motion to dismiss, Chestnut submitted himself to the trial court's jurisdiction and thus waived his right to later assert that defense.

Accordingly, we find that Chestnut waived his right to challenge service of process and affirm the trial court's order denying Chestnut's motion to quash without an evidentiary hearing.

Affirmed.

      The Motion to Dismiss was filed on behalf of both Chestnut and another heir, Darryl Chestnut, who did not file a notice of appeal.

      To the extent the trial court's ruling was based on Chestnut's motion for extension of time to respond to the complaint, filed prior to Chestnut's motion to dismiss, we find that this ruling was erroneous. As Nationstar properly and commendably concedes, " 'a motion for extension of time does not constitute a general appearance' " and therefore is not a waiver. Green Emerald Homes, LLC v. PNC Bank, N.A., 207 So.3d 1027, 1028 (Fla. 5th DCA 2017) (quoting DiGiovanni v. BAC Home Loan Servicing, L.P., 83 So.3d 934, 935-36 (Fla. 2d DCA 2012) ); accord Byers v. FIA Card Servs., N.A., 82 So.3d 1166, 1168 (Fla. 4th DCA 2012). We nonetheless affirm, as the trial court correctly found that Chestnut waived the right to challenge insufficiency of service of process by filing his pre-answer motion to dismiss without raising this defense.