author: FERNANDEZ, J.

text:
    Beatriz BUADE, Appellant, v. TERRA GROUP, LLC, Appellee.
    No. 3D15-2131
    District Court of Appeal of Florida, Third District.
    Opinion filed November 7, 2018
    Sharp Law Firm, P.A., and Christopher C. Sharp (Fort Lauderdale), for appellant.
    Greenberg Traurig, P.A., and Ronald M. Rosengarten, for appellee.
    Before SUAREZ, FERNANDEZ and SCALES, JJ.
   FERNANDEZ, J.

Appellant Beatriz Buade appeals the trial court's final order granting appellee Terra Group, LLC's (Terra) motion for judgment on the pleadings or in the alternative for directed verdict. Upon review of the record, we affirm.

BACKGROUND

From October 2004 to the date of her termination on December 10, 2010, Buade was employed by Terra as a contract administrator and was promoted to customer service supervisor. In her supervisory role, Buade alleges that, beginning on or about August 1, 2005, Terra employee, Carlos Hollender, began refusing to comply with Buade's instructions related to his employment, and she later claimed that Hollender was sexually harassing her. In 2010, Buade was terminated by Terra; she alleges that her termination was a result of her complaints regarding her perceived discrimination. The following timeline of events begins with Buade's initial report of insubordination and concludes with her termination:

• At some point between 2005 and 2006, Buade began to report Hollender's noncompliance to her supervisor, Michael Piazza. Piazza reassigned Hollender for a period of two and a half months, after which time Hollender returned to Buade's department and remained insubordinate.
• For the first time, in early 2007, Buade informed Piazza that Hollender was sexually harassing her in the workplace and continued to report the alleged sexist treatment to Piazza over the next 3 years.
• On June 4, 2010, Buade sent an email to Piazza and copied Yelana Fernandez, Terra's head of human resources, stating that she believed that Hollender had a personal issue with women being in authoritative positions.
• On June 7, 2010, Piazza and another of Buade's supervisors determined that Hollender would work on his own from then on. Nevertheless, by September 2010, Hollender returned to working under Buade's supervision. Buade alleges that Hollender continued to harass her during that time. Buade claims that she continued to make Piazza aware of these incidents, but nothing further was done to deter or discipline Hollender for his actions.
• On December 10, 2010, Buade was terminated. Buade alleges that there were no legitimate non-discriminatory or non-retaliatory reasons for her termination and that she was ultimately terminated based on her sex.

On or about April 12, 2011, Buade filed an official Charge of Discrimination against Terra with the Florida Commission on Human Relations (FCHR) and with the Equal Employment Opportunity Commission (EEOC). The charge was limited to Hollender's alleged harassment, insubordination, and intimidation, and in the section of the charging document titled "Discrimination Based On," Buade checked only the box labeled "Sex," leaving the "Retaliation" box unchecked. On April 23, 2012, Buade filed a two-count complaint alleging a violation of section 760.10, Florida Statutes (2017), for sex discrimination (Count I) and retaliation (Count II). As to the retaliation count, Buade asserts that her complaints regarding Hollender's treatment towards her in the workplace constitute protected activity under the Florida Civil Rights Act of 1992 and Title VII of the Civil Rights Act of 1964, as amended. On September 11, 2013, Buade dismissed her sex discrimination claim, leaving only her retaliation claim.

On May 13, 2014, during trial, Terra filed a motion for judgment on the pleadings or in the alternative for directed verdict arguing that Buade failed to exhaust her administrative remedies as to the retaliation claim. On August 12, 2015, after a hearing on the motion, the trial court granted Terra's motion and dismissed Buade's complaint with prejudice due to Buade's failure to exhaust her administrative remedies before filing suit. This appeal followed.

ANALYSIS

The standard of review for an order granting a motion for judgment on the pleadings is de novo . Walker v. Figarola, 59 So.3d 188, 190 (Fla. 3d DCA 2011). This is the same legal test that governs a motion to dismiss for failure to state a cause of action. Henao v. Prof'l Shoe Repair, Inc., 929 So.2d 723, 725 (Fla. 5th DCA 2006).

Before a plaintiff files a Title VII action, he or she must exhaust all administrative remedies by filing a charge of discrimination with the EEOC. See Sanchez v. Standard Brands, Inc., 431 F.2d 455, 460 (5th Cir. 1970). In order to exhaust his or her administrative remedies, a plaintiff must include the factual bases for all of his or her Title VII claims in the charge. See Houston v. Army Fleet Servs., L.L.C., 509 F.Supp.2d 1033, 1043 (M.D. Ala. 2007). The Florida Civil Rights Act (FCRA) contains this same exhaustion requirement regarding retaliation claims. See § 760.11, Fla. Stat. (2011) ; Sheridan v. State, Dep't of Health, 182 So.3d 787, 789 (Fla. 1st DCA 2016) ; Carter v. Health Mgmt. Assocs., 989 So.2d 1258, 1262 (Fla. 2nd DCA 2008). To state a cause of action for retaliation under the FCRA, an employee must prove a prima facie case by showing: "(1) he engaged in a statutorily protected expression; (2) there was an adverse employment action; and (3) there was a causal connection between the participation in the protected expression and the adverse action." St. Louis v. Fla. Int'l Univ., 60 So.3d 455, 460 (Fla. 3d DCA 2011).

First, Buade contends that it was not necessary for her to check off the box for "Retaliation" on her EEOC charge because the alleged retaliation would have reasonably been expected to have been discovered during an investigation of the sexual discrimination charge. However, retaliation is an entirely separate cause of action from a discrimination claim. See Wallin v. Minn. Dep't of Corrs., 153 F.3d 681, 688 (8th Cir. 1998) ("[I]t is well established that retaliation claims are not reasonably related to underlying discrimination claims."). Retaliation is not "an integral part of an underlying discrimination claim, and, therefore, would not have been encompassed in a reasonable investigation of plaintiff's charge of disability harassment." Williamson v. Int'l Paper Co., 85 F.Supp.2d 1184, 1197 (S.D. Ala. 2000). And, if the alleged retaliation occurs before the EEOC charge is filed, the plaintiff is required to include factual information in the charge that indicates the basis of his or her retaliation claim. Houston, 509 F.Supp.2d at 1042.

Here, Terra's alleged retaliation occurred before Buade filed her EEOC

charge, so Buade was required to specifically include a factual narrative supporting her retaliation charge, which she did not do. Buade not only failed to indicate in the charge that she was terminated the year before, but also, that any adverse action was taken against her by her employer or that she was retaliated against in any way. The charge fails to make any connection between Buade's email complaint to Piazza on June 4, 2010 regarding Hollender's behavior and her termination more than six months later on December 10, 2010. All the charge claims is that Buade was subjected to sex discrimination but includes nothing about any retaliation, only denoting a date for Terra's last act of discrimination. Also, despite having adequate time and opportunity, Buade never amended the charge to include a claim for retaliation.

Additionally, no temporal proximity exists between when Buade complained via email to Piazza and when Buade was laid off. "The cases that accept mere temporal proximity between an employer's knowledge of protected activity and an adverse employment action as sufficient evidence of causality to establish a prima facie case uniformly hold that the temporal proximity must be 'very close.' " Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 273, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001). In Pierce v. Target Stores, Inc., 206 Fed. Appx. 865, 866 (11th Cir. 2006), the court held that a six-month gap in between plaintiff's complaint to corporate headquarters and his termination was by itself insufficient to establish causality, and the courts in Richmond v. ONEOK, Inc., 120 F.3d 205, 209 (10th Cir. 1997), and Hughes v. Derwinski, 967 F.2d 1168, 1175-75 (7th Cir. 1992), also found a three and four-month gap, standing alone, to be insufficient. Here, Buade was terminated more than six months after emailing her last recorded complaint to Piazza.

Accordingly, we affirm the trial court's decision to grant Terra's motion for judgment on the pleadings or in the alternative for directed verdict.

Affirmed.

      In the section requesting the latest act of discrimination, Buade provided the date "December 8, 2010," without explanation or context. Below and on appeal, Buade incorrectly asserts that this was the date of her termination, as support for her argument that she exhausted her administrative remedies as to the retaliation claim. Buade's actual date of termination was December 10, 2010. Within the document, there is no reference to her termination that occurred the year before.


source: Caselaw Access Project

author: MORRIS, Judge. ATKINSON, Judge, Dissenting.

license: Public Domain

text:
    Yorlan Espinosa PENA; Warner B. Barrantes; Sarah Hamadi; Robert L. Garcia; Randy Moreno; Peter W. Rodino ; Miguel Guzman; Michael R. Myzak; Maxwell S. Given; Max Gene Miller; Mark R. Dhondt; Mark S. Magitman; Lazaro Manuel Urquila Venta; Kevin Perez; Joseph Richard Diaz; Jesus A. Sanchez; Irving Hernandez ; Henry Guevara; Patrick J. Garry ; Gabriel L. Cuervo; Edwin Oscar Torres Vazqueztell; Daniel J. Barron; Cypriss A. Woodall; Claudia Graveran; Alexander M. Howard; Aimee Santana Perez; Geoffrey C. Hart; and Blas E. Aleman, Petitioners, v. STATE of Florida, Respondent.
    Case No. 2D17-4465
    District Court of Appeal of Florida, Second District.
    Opinion filed November 9, 2018
    Louis Arslanian, Hollywood, for Petitioners.
    Pamela Jo Bondi, Attorney General, Tallahassee, and C. Todd Chapman, Assistant Attorney General, Tampa, for Respondent.
   MORRIS, Judge.

The petitioners, drivers appearing in county court for civil traffic infractions, seek certiorari review of a circuit court order denying their joint petition for writ of prohibition, which sought review of the county judge's denial of the petitioners' motions to disqualify the county judge from presiding over their traffic cases. The circuit court denied the petition for writ of prohibition, concluding that the motions to disqualify the county judge were legally insufficient. We grant the petition for writ of certiorari because the motions were legally sufficient and the circuit court departed from the essential requirements of the law in denying the petition for writ of prohibition.

I. Background

In their motions to disqualify filed in county court, the petitioners asserted that they had a well-founded fear that they would not receive a fair proceeding before the county judge based on the following facts:

[Petitioners' counsel] was approached by [a hearing officer] in the middle of December, 2016 and was warned that [the hearing officer] "was talked to" and that he would no longer be as lenient as he had been in the past.
Not knowing who "talked to" [the hearing officer], [counsel] was unaware if any inappropriate communications had taken place between [the hearing officer] and any other court official.
In order to make that determination, the undersigned's office requested all e-mails relating to traffic court from [the county judge].
[Counsel's] office received a series of e-mails from court administration on May 9, 2017. One of these e-mails was troubling, and appears to establish inappropriate conduct on the part of the clerk's office and [the county judge].
An e-mail dated Wednesday, December 14, 2016[,] was written from [a] Clerk employee[ ] to [the county judge]. In this e-mail, [the employee] references the hearing officer who is presiding over the docket on that day. Removing herself from her position as a neutral clerk employee, and becoming an adversary to drivers, [the employee] reported to [the county judge] that the hearing officer was being "talked into withholding adjudication" and she needed to talk to [the county judge] about this conduct in court. On the same day, [the county judge] replied to [the employee] and assured her that he will "have a discussion with him shortly."
Shortly after this e-mail was sent by [the county judge], [counsel] was approached by [the hearing officer], and told that he had "been talked to" and that he would no longer be as lenient as he had been in the past.
In May 2017, [the county judge] called the undersigned to the bench in open court. [The county judge] questioned why [counsel's] law firm had requested his traffic related e-mails. [Counsel] explained that he had been told by the traffic magistrates that they had "been talked to" and would no longer be as lenient as they had been in the past. Further, [the county judge] explained that he had read a report that indicated that Lee County was known as a place for aggressive drivers, presumably explaining why he "talked to" the traffic magistrates about their actions in traffic court.

In addition to the above allegations, the motions also alleged that after counsel had inquired about the e-mails, his clients' cases were moved from their originally-scheduled docket to a special docket assigned to this particular county judge.

On April 20, 2017[,] [counsel's] law firm filed a number of Notices of Appearances for traffic infractions, requesting a County Court Judge to hear the cases.
....
[Counsel's] office learned that this matter was assigned to [the county judge's] traffic docket on May 17, 2017.
....
Even though another Judge was scheduled to be assigned these cases, [the county judge] took it upon himself to assign all of these cases to a special docket in his own courtroom. The undersigned's office called the Clerk's office to ascertain why this happened and was advised by an assistant Supervisor that another Judge should have been assigned those cases based on the pre-determined schedule. The undersigned's office asked for a copy of the Administrative Order that allowed for one Judge to avoid the random assignment of cases and to place them on a special docket in his/her own courtroom. That request has not been responded to at the time of the filing of this motion. Another supervisor at the clerk's office did reply with an e-mail, explaining that the judge's dockets were busy and this special docket was set up in an effort to deal with the high number of traffic cases presented to the county court judges. Again, a copy of the administrative order authorizing this was requested, but no reply has been received.

Attached to the motion to disqualify was an affidavit of counsel attesting to the facts alleged in the motion, as well as a copy of the e-mails between the county judge and the clerk's employee. The motion also described past traffic court rulings by the county judge:

In the past, [the county judge] required a number of the undersigned's clients to pay their fines and court costs the same day as their traffic hearing. This ruling was in clear violation of Traffic Rule 6.480(a). Consequently, many clients had their driver license suspended improperly based on this improper court order.
Recently, [the county judge] ruled that a recapture period applied to the speedy trial rule for traffic infractions, even though the Traffic Rules clearly do not provide for a recapture period (Traffic Rule 6.325(a) ). Consequently, three drivers who were tried more than 180 days after the issuance date of their citation did not have their cases dismissed, even though they were not attributable for any delays in their case. These cases are now on appeal before the Lee County Circuit Court.
[The county judge] has recently ruled that if a driver avails himself of Traffic Rule 6.630(n), that driver waives his/her right to a speedy trial, even though the rule makes no mention of this waiver.

The county judge denied the motions to disqualify "as legally insufficient."

The petitioners sought review of the denial of their motions to disqualify by filing a joint petition for writ of prohibition in the circuit court. See Sutton v. State, 975 So.2d 1073, 1077 (Fla. 2008) ("This Court has recognized that prohibition is a proper remedy to seek review of the denial of a motion to disqualify ...."). The circuit court denied the petition, concluding that

[p]etitioners did not have a well-founded, objectively reasonable, fear they would not receive fair hearings. The allegations are those of adverse judicial rulings, and pure speculation as to the reasons why the county judge met with the hearing officer, the content of that meeting, or why the docket was transferred. The motions to disqualify, and petition, allege no statement of bias or prejudice on the part of the county judge towards Petitioners, only that he mentioned a report about aggressive drivers. [Thus,] the motions to disqualify were legally insufficient.

II. Analysis

In their petition for writ of certiorari filed in this court, the petitioners argue that the circuit court departed from the essential requirements of the law in denying their petition for writ of prohibition because their motions to disqualify the county judge were legally sufficient in that the facts as alleged gave the petitioners a reasonable fear of receiving an unfair trial before the county judge.

Because the petition for writ of prohibition filed in the circuit court sought review of the denials of the motions to disqualify by the county judge, the petition for writ of prohibition served a similar function as a direct appeal. Sutton, 975 So.2d at 1077-78. Therefore, the circuit court's denial of the petition for writ of prohibition is reviewable in this court by certiorari. See id. at 1079-80. "[T]he reviewing court in this context can only grant a petition for writ of certiorari based on a departure from the essential requirements of law. A departure from the essential requirements of law is not mere legal error, but instead, involves a 'gross miscarriage of justice.' " Id. at 1080-81 (citation omitted) (quoting Haines City Cmty. Dev. v. Heggs, 658 So.2d 523, 527 (Fla. 1995) ).

A party moving to disqualify a judge must file an affidavit in good faith stating fear that he or she will not receive a fair trial on account of the prejudice of the trial judge, alleging facts and reasons for the belief that prejudice exists. Gregory v. State, 118 So.3d 770, 778 (Fla. 2013) (citing § 38.10, Fla. Stat. (2011) ). A judge ruling on an initial motion to disqualify "shall determine only the legal sufficiency of the motion and shall not pass on the truth of the facts alleged." Id. (quoting Fla. R. Jud. Admin. 2.330(f) ). "Whether the motion is legally sufficient requires a determination as to whether the alleged facts would create in a reasonably prudent person a well-founded fear of not receiving a fair and impartial trial." Id. (quoting Rodriguez v. State, 919 So.2d 1252, 1274 (Fla. 2005) ). The fear must be objectively reasonable; a subjective fear is not sufficient. Id. (quoting Arbelaez v. State, 898 So.2d 25, 41 (Fla. 2005) ). If the motion is legally sufficient, the judge shall grant disqualification and proceed no further in the action; if the motion is legally insufficient, the judge shall deny the motion without commenting on the allegations in the motion. Id. (quoting rule 2.330(f) ).

Here, the allegations suggesting the county judge's tough stance on traffic defendants and noting his prior adverse rulings may not have been sufficient in themselves to show bias. Compare Thompson v. State, 759 So.2d 650, 659 (Fla. 2000) ("[T]he fact that a judge has ruled adversely to the party in the past does not constitute a legally sufficient ground for a motion to disqualify."), Arbelaez v. State, 775 So.2d 909, 916 (Fla. 2000) ("As to the claims of bias and prejudice, there was nothing in [the defendant's] allegations to show that [the judge] had a personal bias or prejudice against him. Neither her 'tough-on-crime' stance nor her former employment as a prosecutor was legally sufficient for disqualification."), and Foy v. State, 818 So.2d 704, 706 (Fla. 5th DCA 2002) (holding that judge's comments that "there is no cure for pedophilia" and that "treatment doesn't do a bit of good" did not express "any standard sentencing policy for those individuals charged with committing sexual acts on minors" and were therefore legally insufficient for disqualification) with Martin v. State, 804 So.2d 360, 364 (Fla. 4th DCA 2001) (holding that motion to disqualify was legally sufficient where "the judge's remarks could reasonably be interpreted as announcing a fixed intention to have probation invariably follow any jail or prison sentence that he would impose"), and Torres v. State, 697 So.2d 175, 177 (Fla. 4th DCA 1997) ("[A] judge's announced policy that no probation violator will be sentenced to time served amounts to legally sufficient grounds for disqualification because the policy personally affects the petitioner and places him in fear that he will not receive a fair sentencing hearing.").

However, the petitioners also alleged that the county judge instructed the hearing officer to be less lenient on traffic defendants and that the county judge believed that drivers in the county were aggressive. Moreover, the petitioners alleged that the county judge inquired why counsel requested the judge's e-mails and that soon thereafter, counsel's clients' cases were removed from their original docket and transferred to the docket of this particular county judge. These allegations combined were sufficient to give the petitioners an objective fear that they would not receive a fair trial before this particular county judge in their traffic cases. See State v. Voong Leng, 987 So.2d 236, 237 (Fla. 4th DCA 2008) (granting petition for writ of certiorari because motion to disqualify the county judge alleged prior comments by the trial judge which showed bias and caused the movant to have a well-grounded fear that he would not receive a fair trial). Contrary to the circuit court's conclusion, the allegations in the motion to disqualify were not general and speculative; rather, they were specific to counsel and his traffic clients, and they were based on specific conversations between the county judge and the clerk's employee, the hearing officer, and counsel.

In denying the writ of prohibition, the circuit court departed from the essential requirements of law. The circuit court's order results in a miscarriage of justice because twenty-eight traffic cases remain pending before a county judge who should have recused himself based on the petitioners' allegations establishing a well-founded fear of not receiving a fair and impartial trial. See generally Voong Leng, 987 So.2d at 237 (granting certiorari relief where circuit court improperly denied writ of prohibition because motion to disqualify was legally sufficient and two other circuit courts had granted writs of prohibition on identical grounds); State v. Shaw, 643 So.2d 1163, 1164-66 (Fla. 4th DCA 1994) (granting certiorari relief where circuit court improperly granted petition for writ of prohibition and circuit court's ruling resulted "in a violation of clearly established law and a miscarriage of justice because it offends procedures integral to the fair administration of justice").

Petition for writ of certiorari granted; order quashed.

LaROSE, C.J., Concurs.

ATKINSON, J., Dissents with opinion.

ATKINSON, Judge, Dissenting.

I would deny the petition for writ of certiorari. The circuit court did not violate "a clearly established principle of law resulting in a miscarriage of justice" when it determined that the Petitioners' motions to disqualify the county court judge were legally insufficient. State v. Shaw, 643 So.2d 1163, 1165 (Fla. 4th DCA 1994) (quoting Combs v. State, 436 So.2d 93, 96 (Fla. 1983) ); see Fla. R. Jud. Admin. 2.330(d)(1) (requiring that a motion to disqualify "show ... that the party fears that he or she will not receive a fair trial or hearing because of specifically described prejudice or bias of the judge" (emphasis added) ); Sutton v. State, 975 So.2d 1073, 1081 (Fla. 2008) ("A departure from the essential requirements of law is not mere legal error, but instead, involves a gross miscarriage of justice.... These standards govern the process of a district court of appeal in certiorari review of an order on a petition for writ of prohibition in this context to ensure that such review will neither function like nor actually be a second appeal." (internal citations and quotation marks omitted) ).


author: LUCAS, Judge.

text:
    DEPARTMENT OF REVENUE O/B/O Kathryn E. SALYER, Appellant, v. Kevin J. VOBROUCEK, Appellee.
    Case No. 2D17-2646
    District Court of Appeal of Florida, Second District.
    Opinion filed November 9, 2018
    Pamela Jo Bondi, Attorney General, and Carrie R. McNair, Assistant Attorney General, Tallahassee, for Appellant.
    No appearance for Appellee.
   LUCAS, Judge.

The Department of Revenue (DOR) appeals the denial of its supplemental petition for modification of Kevin Vobroucek's child support obligation. The circuit court adopted the findings and recommendations of a hearing officer who concluded that the court did not have subject matter jurisdiction because DOR's petition had been filed after the minor child who was the subject of the support obligation had reached the age of eighteen and a marital settlement agreement between Mr. Vobroucek and his former wife terminated his support obligation upon their child's eighteenth birthday. The circuit court's conclusion that it was without subject matter jurisdiction was erroneous.

Mr. Vobroucek and his former wife have a daughter who happened to graduate from high school several months after her eighteenth birthday. Pursuant to a 2001 marital settlement agreement, Mr. Vobroucek had been paying child support in the amount of $115.38 per week to the State for the former couple's child. From his testimony before the hearing officer, it appears Mr. Vobroucek was current on his support obligation; indeed, he testified without contradiction that he had a "reserve" of approximately $900 with his child support account with the State-which the State refunded him after his daughter's eighteenth birthday. In spite of having previously refunded his support payments, on February 1, 2017, DOR filed a supplemental petition pursuant to section 743.07(2), Florida Statutes (2017), seeking to extend Mr. Vobroucek's child support obligation beyond the date of the child's eighteenth birthday (which was in December of 2016) to the date of her graduation from high school (in May of 2017).

To his credit, Mr. Vobroucek indicated he had no objection to DOR's request for additional child support. "I'm gonna pay the child support till she's done with high school," he told the hearing officer. But the hearing officer expressed concern that the court did not have subject matter jurisdiction to grant such a modification since the child had already turned eighteen by the time DOR filed its supplemental petition. The circuit court agreed, adopted the hearing officer's findings and recommendations that the court was without subject matter jurisdiction, and denied the supplemental petition. In its order denying DOR's subsequent motion to vacate, the circuit court clarified its ruling by a citation to this court's decision in Loza v. Marin, 198 So.3d 1017 (Fla. 2d DCA 2016). This is DOR's timely appeal.

The Florida Supreme Court has explained that subject matter jurisdiction "concerns the power of the trial court to deal with a class of cases to which a particular case belongs." Paulucci v. Gen. Dynamics Corp., 842 So.2d 797, 801 n.3 (Fla. 2003) (quoting Cunningham v. Standard Guar. Ins. Co., 630 So.2d 179, 181 (Fla. 1994) ) (distinguishing between "subject matter jurisdiction" and "continuing jurisdiction"). "Subject matter jurisdiction 'means no more than the power lawfully existing to hear and determine a cause.' " Id. (quoting Cunningham, 630 So.2d at 181 ).

Section 61.13, Florida Statutes (2017), both recognizes a parent's obligation to support his or her child and empowers a circuit court to award child support based upon a statutory formula. See § 61.13(1)(a) ; see also Serio v. Serio, 830 So.2d 278, 280 (Fla. 2d DCA 2002) ("Child support 'is not a requirement imposed by one parent on the other; rather it is a dual obligation imposed on the parents by the State.' " (quoting Armour v. Allen, 377 So.2d 798, 800 (Fla. 1st DCA 1979) ) ). The obligation to provide child support ends once the child reaches the age of majority, "unless the court finds or previously found that s. 743.07(2) applies, or is otherwise agreed to by the parties." See § 61.13(1)(a)(1)(a). Section 743.07(2), in turn, contains two provisions that authorize a court to extend a child support obligation beyond the child's age of majority:

This section shall not prohibit any court of competent jurisdiction from requiring support for a dependent person beyond the age of 18 years when [1] such dependency is because of a mental or physical incapacity which began prior to such person reaching majority or [2] if the person is dependent in fact, is between the ages of 18 and 19, and is still in high school, performing in good faith with a reasonable expectation of graduation before the age of 19.

In Loza, 198 So.3d at 1022-23, we determined that the circuit court was without subject matter jurisdiction to consider a supplemental petition to extend a child support obligation due to the child's alleged incapacity from a head injury when the petition had been filed after the child's eighteenth birthday. The problem, we observed, was that there had been no prior "effective adjudication" of the child's incapacity in any previous court order and thus we were compelled "by both common law and legislative directive to conclude that the child support terminated" upon the child's eighteenth birthday. Id. at 1022 (first citing § 61.13(1)(a)(1)(a) ; then citing Willens v. Garcia, 53 So.3d 1113, 1116 (Fla. 3d DCA 2011) ). Under those circumstances, we concluded that the circuit court did not have jurisdiction to modify the award under the first provision of section 743.07(2). Id. at 1023. We took care, however, to note that section 743.07(2)'s second provision, allowing modification of a support order when a recently emancipated minor is still in high school, did not apply to the facts of the case. Id. at 1022 n.2 (citing D.J.S. v. W.R.R., 99 So.3d 991, 993 (Fla. 2d DCA 2012) ). It applies to the case at bar.

The second provision of section 743.07(2) is clear and unambiguous. Dyck-O'Neal, Inc. v. Lanham, 43 Fla. L. Weekly S278c, S280c, 257 So.3d 1, 2, 2018 WL 3301567 (Fla. July 5, 2018) ("When the language of the statute is clear and unambiguous and conveys a clear and definite meaning, ... the statute must be given its plain and obvious meaning." (citing Holly v. Auld, 450 So.2d 217, 219 (Fla. 1984) ) ); Lopez v. Hall, 233 So.3d 451, 453 (Fla. 2018) (noting that a statute must be examined by its "plain meaning, resorting to rules of statutory construction only if the statute's language is ambiguous"). The language used in the second provision for this subsection reads entirely in the present tense and thus contemplates that a supplemental petition can be filed if the child "is between the ages of 18 and 19, and is still in high school, performing in good faith with a reasonable expectation of graduation before the age of 19." Cf. Osborne v. Dumoulin, 55 So.3d 577, 588 (Fla. 2011) ("We agree that use of the present tense of the verbs in section 222.25(4) narrows the relevant time that a debtor receives the benefits of the article X homestead exemption to the period when the debtor asserts the personal property exemption."); Arch Aluminum & Glass Co., Inc. v. Haney, 964 So.2d 228, 237 (Fla. 4th DCA 2007) (noting that Florida's long-arm statute's use of the present tense verb "is engaged in" substantial and not isolated activity within this state "shows that jurisdiction under this subsection requires current activity"). Indeed, the statute can be construed no other way: if a child "is" between eighteen and nineteen, "is still in" high school, and meets the remaining statutory requirements-as appears to be the case before us-then a court of competent jurisdiction "is not prohibited" from extending the support obligation under the statute. Cf. D.J.S., 99 So.3d at 993 (concluding that trial court had subject matter jurisdiction to consider supplemental petition seeking modification of support under section 743.07(2) ).

Applying the plain language of the second provision of section 743.07(2), we conclude the circuit court had jurisdiction to consider DOR's supplemental petition. Accordingly, we reverse the order below and remand for reinstatement of the supplemental petition.

Reversed and remanded.

CRENSHAW and ATKINSON, JJ., Concur.

      We note, but will not tarry over, the fact that the circuit court's ruling would have perhaps been more properly effectuated as a dismissal of the supplemental petition since the court determined it was without subject matter jurisdiction. Cf. Mannino v. Mannino, 980 So.2d 575, 575 (Fla. 2d DCA 2008) (appealing order dismissing postdissolution petition to modify child custody and child support based on circuit court's determination that it was without subject matter jurisdiction); Bared & Co., Inc. v. McGuire, 670 So.2d 153 (Fla. 4th DCA 1996) (en banc) (explaining distinction between dismissal and denial for purposes of certiorari jurisdiction).

      The agreement required Mr. Vobroucek to remit his weekly payments to the State of Florida Depository from June 1, 2001, until the child "marries, dies, becomes self-supporting, or reaches majority." Apparently, Mr. Vobroucek's former wife, Kathryn Salyer, was receiving some manner of child support services; hence, DOR's involvement and pursuit of what amounts to around $2000 of further payments from Mr. Vobroucek. See § 409.2557(1), Fla. Stat. (2017) ("The department is designated as the state agency responsible for the administration of the child support enforcement program ...."); Dep't of Revenue ex rel. Tisdale v. Jackson, 217 So.3d 192, 194 n.1 (Fla. 5th DCA 2017) ("DOR serves as Florida's child support enforcement agency pursuant to Title IV-D of the Social Security Act."). Ms. Salyer did not appear in the proceedings below. Neither she nor Mr. Vobroucek have appeared in this appeal.

      This statute, we explained in Loza, 198 So.3d at 1020-21, aligns with the common law rule that a parent's legal duty to support his or her child ordinarily ends once the child reaches the age of majority.

      Whether the event of a child's eighteenth birthday is best characterized as the potential end of subject matter jurisdiction over child support, or a cessation of the court's continuing jurisdiction, or simply the boundary of a legal right afforded under the law is really of no moment here because our decision in Loza was confined to the first provision under section 743.07(2), not the second.


text:
    REV RECREATION GROUP, INC., a Delaware Corporation, and General RV Center, Inc., a Michigan Corporation, Appellants/Cross-Appellees, v. LDRV HOLDINGS CORP., Doing Business as Lazydays RV, a Delaware Corporation, Appellee/Cross-Appellant.
    Case No. 2D18-679
    District Court of Appeal of Florida, Second District.
    Opinion filed November 9, 2018
    Lee D. Wedekind, III, Frank Morreale, and Katherine M. Borello of Nelson Mullins Riley & Scarborough LLP, Jacksonville, for Appellant/Cross-Appellee, REV Recreation Group, Inc.
    Michael D. Dolenga of Dolenga & Dolenga PLLC, Farmington, Michigan; and John A. Schifino and Justin P. Bennett of Burr & Forman LLP, Tampa, for Appellant/Cross-Appellee, General RV Center, Inc.
    Kristin A. Norse and Stuart C. Markman of Kynes, Markman & Felman, P.A., Tampa; and Kenneth G. Turkel and Shane B. Vogt of Bajo Cuva Cohen & Turkel, P.A., Tampa, for Appellee/Cross-Appellant.
   LUCAS, Judge.

This is a dispute over who has the right to sell recreational vehicles in a lucrative central Florida market. A manufacturer, REV Recreation Group, Inc. (REV), and a dealership, General RV Center, Inc. (General RV), appeal a temporary injunction order the trial court entered in favor of another dealership, LDRV Holdings Corp. (Lazydays). Lazydays, in turn, has filed a cross-appeal challenging the trial court's requirement for a $1 million injunction bond. For the reasons we explain below, we must affirm the court's temporary injunction but reverse the imposition of a bond.

I.

The litigation between these parties implicates technical distinctions between various models of recreational vehicles and the marketing practices that pertain to them, but the legal dispute can be easily stated: did REV unlawfully terminate or breach an exclusive dealership agreement it had had in place with Lazydays when REV entered into a new agreement with Lazydays' competitor, General RV, to sell its "Signature" and "Marquis" models of recreational vehicles? Days before a recreational vehicle "supershow" was scheduled to commence in January of 2018, Lazydays filed a complaint and emergency motion for temporary injunction against REV, alleging that REV had violated provisions within sections 320.3201-.3211, Florida Statutes (2017)-governing the commercial relationships between recreational vehicle manufacturers and dealers-as well as various common law claims related to a 2009 dealership agreement and a 2015 dealership agreement it had with REV. Lazydays would later join General RV as a second defendant to its lawsuit. As amended, Lazydays asserted claims for breach of section 320.3205, breach of section 320.3203, breach of contract, breach of the covenant of good faith and fair dealing, promissory estoppel, and violation of section 501.204(1), Florida Statutes (2017), against REV and for breach of section 320.3205, breach of section 320.3203, tortious interference, and violation of section 501.204(1) against General RV. Lazydays' claims are premised on various factual allegations and legal theories; our focus in this appeal is on Lazydays' contention that the "Signature" and "Marquis" models that REV had recently contracted to sell through General RV were the same "line-makes" (as that term is applied under Florida Statutes) as the "Diplomat" and "Dynasty" models REV had agreed to sell through Lazydays.

Lazydays sought to temporarily enjoin REV and General RV from selling either of these models at General RV's facility or at the show. The trial court attended to Lazydays' motion in commendably short order and scheduled a hearing in which it took evidence and testimony. In its written order, the trial court found:

Plaintiff offered evidence that it had entered into two exclusive dealership contracts with defendant: one in 2009 that explicitly mentioned "Signature" and "Marquis" models, and another in 2015 that mentioned other model names offered in the same market segment. It was argued that the 2009 contract was terminated wrongfully and the 2015 contract was still in effect and applicable to these model names because they were legally considered the same "line-make" under the statute governing dealer-manufacture relationships in Florida....
....
At the hearing, the court concluded that the products covered by the 2015 contract were of the same line-make as the Signature and Marquis lines being allocated to the plaintiff's rival [General RV].... The different model names are not determinative, as they have more similarities than differences under the statutory criteria.
....
The plaintiff advanced credible evidence that the damage to its reputation would be irreparable. The plaintiff has shown some likelihood of success on the merits, although the court acknowledges it is a question of first impression which could be decided differently [by] the appellate court. Entering the injunction does maintain the status quo, in that it prevents the defendant [REV] from immediately implementing a contractual allocation decision it made in late December 2017.
Accordingly the court enters the injunction as stated above, effective [January 12, 2018], for 30 days. This is an injunction under contract law using the statute to inform the required terms of the contract, as no violation of the statutory provisions appears. Accordingly, it is subject to a bond requirement, and ...
the court sets injunction bond at $40,000.

The injunction prohibited REV from promoting the Signature and Marquis lines through any dealership other than Lazydays for a period of thirty days. The injunction also prohibited REV or its representatives from participating in the upcoming recreational vehicle show in connection with those models.

By agreement between the parties, the injunction was extended until the court could convene another evidentiary hearing to consider REV's and General RV's motion to dissolve the injunction and Lazydays' emergency motion to modify (essentially extend) the prior temporary injunction's time and to include General RV within the injunction's ambit. A hearing on both motions was convened and after considering the testimony of numerous industry insiders and representatives and employees of the parties, the court announced that it would grant Lazydays' motion and extend the injunction. However, the court was very much troubled by the application of sections 320.3201-.3211 in this dispute. In its written order extending the temporary injunction, the trial court extended its prior injunction "until further order of court" but increased the injunction bond Lazydays would have to post to $1 million. In this appeal and cross-appeal, we consider the applicability of sections 320.3201-.3211 to the trial court's temporary injunction.

II.

As the Florida Supreme Court has explained, we employ a hybrid standard of review for orders on temporary injunctions: "To the extent the trial court's order is based on factual findings, we will not reverse unless the trial court abused its discretion; however, any legal conclusions are subject to de novo review." Gainesville Woman Care, LLC v. State, 210 So.3d 1243, 1258 (Fla. 2017) (quoting Fla. High Sch. Athletic Ass'n v. Rosenberg, 117 So.3d 825, 826 (Fla. 4th DCA 2013) ). Where the trial court's temporary injunction concerns matters within the trial court's discretion, "[a]n appellant who challenges the trial court's order ... has a heavy burden; the trial court's ruling is presumed to be correct and can only be reversed where it is clear the court abused its discretion." Atomic Tattoos, LLC v. Morgan, 45 So.3d 63, 64 (Fla. 2d DCA 2010) (citing JonJuan Salon, Inc. v. Acosta, 922 So.2d 1081, 1083 (Fla. 4th DCA 2006) ).

At issue here is the proper application of sections 320.3201-.3211 of the Florida Statutes. These sections were enacted together in 2007 as part of a single, untitled act. See generally ch. 2007-258, Laws of Fla. The declared public policy of these statutes was to "protect the public health, safety and welfare" of Floridians "by regulating the relationship between recreational vehicle dealers and manufacturers, maintaining competition, and providing consumer protection and fair trade." § 320.3201(1). The applicable sections provide, in relevant part, as follows:

Section 320.3203:
(1) A manufacturer or distributor may not sell a recreational vehicle in this state to or through a dealer without having first entered into a manufacturer/dealer agreement with a dealer which has been signed by both parties.
(2) The manufacturer shall designate the area of sales responsibility exclusively assigned to a dealer in the manufacturer/dealer agreement and may not change such area or contract with another dealer for sale of the same line-make in the designated area during the duration of the agreement.
Section 320.3205:
(1) A manufacturer or distributor, directly or through any officer, agent, or employee, may not terminate, cancel, or fail to renew a manufacturer/dealer agreement without good cause ....
Section 320.3210:
(1) A dealer, manufacturer, distributor, or warrantor injured by another party's violation of ss. 320.3201 - 320.3211 may bring a civil action in circuit court to recover actual damages. The court shall award attorney's fees and costs to the prevailing party in such action. Venue for any civil action authorized by this section must exclusively be in the county in which the dealership is located. In an action involving more than one dealer, venue may be in any county in which a dealer who is party to the action is located.
....
(3) In addition to the remedies provided in this section and notwithstanding the existence of any additional remedy at law, a dealer or manufacturer may apply to a circuit court for the grant, upon a hearing and for cause shown, of a temporary or permanent injunction, or both, restraining any person from acting as a dealer, manufacturer, distributor, or importer without being properly licensed pursuant to this chapter, from violating or continuing to violate any of the provisions of ss. 320.3201 - 320.3211, or from failing or refusing to comply with the requirements of ss. 320.3201 - 320.3211. Such injunction shall be issued without bond. A single act in violation of s. 320.3203 is sufficient to authorize the issuance of an injunction.

All the parties acknowledge that these statutes were applicable to REV's dealings within Florida as a recreational vehicle manufacturer. That is, if REV wished to sell recreational vehicles in Florida, it was required to enter into a written dealership agreement with a "dealer" (as that term is defined in section 320.3202(2) ), such as Lazydays or General RV, for a designated area. Moreover, the parties also recognize the prohibitions within sections 320.3203(2) and 320.3205(1): once a dealership agreement is in effect, a manufacturer cannot terminate it without good cause or sufficient prior notice, nor may it contract with another dealer to sell the same line-make of recreational vehicle within the agreement's exclusive designated area. The dispute here revolves around whether two brands of a manufacturer's recreational vehicle are the same line-make as two others.

General RV and REV spend considerable time parsing through different means of determining whether the Marquis and Signature and the Dynasty and Diplomat models are different line-makes. They argue that the statutory term can be better understood by considering how the Department of Highway Safety and Motor Vehicles has interpreted "line-make" for purposes of tracking recreational vehicles as part of a national criminal investigation database, or, alternatively, by reference to the defined term "product line" that appeared in Lazydays' dealership agreements with REV. Lazydays maintains that we need look no further than section 320.3202(6), which unambiguously defines "line-make" for purposes of these statutes. In our view, Lazydays has the better argument. There is a statute that tells us how to define this term for this kind of case, so that is what we must follow. See Eustache v. State, 248 So.3d 1097, 1100 (Fla. 2018) ("When the language of the statute is clear and unambiguous and conveys a clear and definite meaning, ... the statute must be given its plain and obvious meaning." (quoting Holly v. Auld, 450 So.2d 217, 219 (Fla. 1984) ) ).

Section 320.3202(6) lists five criteria for a trial court to apply when deciding whether different recreational vehicles can be considered the same line-make. They are:

(6) "Line-make" means a specific series of recreational vehicle products that:
(a) Are identified by a common series trade name or trademark;
(b) Are targeted to a particular market segment, as determined by their decor, features, equipment, size, weight, and price range;
(c) Have lengths and interior floor plans that distinguish the recreational vehicles from other recreational vehicles with substantially the same decor, equipment, features, price, and weight;
(d) Belong to a single, distinct classification of recreational vehicle product type having a substantial degree of commonality in the construction of the chassis, frame, and body; and
(e) The manufacturer/dealer agreement authorizes a dealer to sell.

Unfortunately, in the order before us it appears the trial court issued conflicting determinations with respect to this subsection. On the one hand, the court found "that the products covered by the 2015 contract were of the same line-make as the Signature and Marquis lines being allocated" to General RV. It also concluded that "the different model names" that REV utilized with General RV "are not determinative, as they have more similarities than differences under the statutory criteria." But then, at the conclusion of the order, the court declared that "this is an injunction under contract law using the statute to inform the required terms of the contract, as no violation of the statutory provisions appears." It is not clear to us why the court elected to fashion its temporary injunction in this manner, since the order it issued did not contain sufficient findings to support a common law temporary injunction. Cf. Salazar v. Hometeam Pest Def., Inc., 230 So.3d 619, 621 (Fla. 2d DCA 2017) ("The issuance of a temporary injunction requires the movant to plead and prove the following elements: '(1) a likelihood of irreparable harm; (2) unavailability of an adequate legal remedy; (3) a substantial likelihood of success on the merits; and (4) considerations of the public interest support the entry of the injunction.' " (quoting Masters Freight, Inc. v. Servco., Inc., 915 So.2d 666, 666 (Fla. 2d DCA 2005) ) ).

But that shortcoming is not necessarily fatal to the order's effect. Our court has held that a trial court's findings "should be read as a whole in the light of the record on appeal, and where they are conflicting they should, where possible, be so construed as to harmonize with each other and with the judgment." Marsicano v. Rogers, 164 So.2d 531, 532 (Fla. 2d DCA 1964). In such instances, "[a]n appellate court should uphold the evident intention of the lower court and, if possible, make the findings support the judgment." Id. Here, the trial court found that the products covered under Lazydays' 2015 dealership agreement were the same line-make under section 320.3202(6) as the Signature and Marquis lines REV subsequently contracted to sell to General RV. That finding is supported by the record before us. We think the trial court's seemingly contrary conclusion that there was no statutory violation, coupled with the somewhat puzzling reference about the statute "informing" the interpretation of the parties' contract, when read in the context of the remaining findings, simply reflect the trial court's view that (1) an injunction was appropriate; but (2) as a case of first impression under these statutes, the court could only issue a temporary injunction as a common law equitable remedy, subject to a bond.

To the extent the trial court felt constrained not to apply the statutory criteria or prohibitions because an appellate court had not yet published an opinion construing them, the court was in error. Cf. Basic Energy Corp. v. State, Dept. of Corr. ex rel. Internal Imp. Tr. Fund, 709 So.2d 124, 128 (Fla. 1st DCA 1998) (affirming trial court's application and interpretation of term in statute where "there [was] no case law construing the term 'appropriation' "); see also McGauley v. Goldstein, 653 So.2d 1108, 1109 (Fla. 4th DCA 1995) ("In the absence of ... district court precedent, the judge must make an independent exercise of judgment."); Rosen ex rel. Rosen v. Zorzos, 449 So.2d 359, 361 (Fla. 5th DCA 1984) ("[L]ack of precedent alone does not take away a common-law court's responsibility to decide each claim presented before it on its own merit."), decision quashed on other grounds, 467 So.2d 305 (Fla. 1985). The Legislature has specifically authorized injunctive relief as a civil remedy under section 320.3210(3) when any of sections 320.3201-.3211 are violated. Indeed, "a single act" in violation of section 320.3203 is sufficient to warrant the issuance of an injunction. See § 320.3210(3). Lazydays presented substantial evidence that the models REV was selling through General RV were the same line-make as the models that were the subject of Lazydays' 2015 dealership agreement, and the trial court's order included a factual finding reflective of that evidence. None of the parties have challenged any aspect of sections 320.3201-.3211, nor do they contend in this appeal that the statutes are ambiguous. Thus, we can construe the court's factual findings with the record as a whole to support the injunction the court entered, even if the court's legal conclusion that the statute had not been violated may have been incorrect.

See Dade Cty. Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 644 (Fla. 1999) (noting that "if a trial court reaches the right result, but for the wrong reasons, it will be upheld if there is any basis which would support the judgment in the record").

However, these same statutes also compel us to reverse the court's imposition of an injunction bond. Section 320.3210(3) plainly states "[s]uch injunction shall be issued without bond." The imposition of the mandatory directive "shall" removes the discretion the trial court might have otherwise employed. See Townsend v. R.J. Reynolds Tobacco Co., 192 So.3d 1223, 1229 (Fla. 2016) ("Generally, the word 'shall' is interpreted as mandatory in nature." (citing S.R. v. State, 346 So.2d 1018, 1019 (Fla. 1977) ) ). If an injunction is issued under section 320.3210(3), it cannot be premised on the posting of an injunction bond. We must, therefore, reverse that part of the court's order.

III.

Reading the record as a whole, we agree that there has been a preliminary showing that REV and General RV violated section 320.3203(2). Lazydays was entitled to a temporary injunction. So while we cannot endorse the trial court's stated legal basis for the injunction it entered, from our review of the record we can find no basis to disturb what was, in the end, a correct grant of injunctive relief under the law. The only error that requires reversal is the imposition of an injunction bond. Accordingly, we affirm the trial court's decision to enter a temporary injunction but reverse and remand for the limited purpose of entering a new order striking any requirement for a temporary injunction bond. See § 320.3210(3).

Affirmed in part; reversed in part; remanded with instructions.

LaROSE, C.J., and SILBERMAN, J., Concur.

      In particular, the court appeared to struggle with aligning the statutorily defined term "line-make" with the industry's use of the terms "lines" and "makes." The court also expressed confusion over what the real policy intent behind the enactment of these statutes was, inasmuch as the statutes appeared to suppress competition between dealers in the market.

      The trial court's order does not cite to any case or Florida Rule of Civil Procedure 1.610, governing temporary injunctions. The order included findings of irreparable harm (a loss of Lazydays' reputation) and that the entry of an injunction would maintain the status quo. Accord Gawker Media, LLC v. Bollea, 129 So.3d 1196, 1199 (Fla. 2d DCA 2014) ("The primary purpose of a temporary injunction is to preserve the status quo while the merits of the underlying dispute are litigated." (quoting Manatee County v. 1187 Upper James of Fla., LLC, 104 So.3d 1118, 1121 (Fla. 2d DCA 2012) ) ). However, the trial court's order made no finding that Lazydays would be without an adequate legal remedy if the injunction were not issued (in fact, it appears from the record thus far that Lazydays' claimed damages are almost entirely monetary in nature). Further, while the court's order stated that Lazydays had "shown some likelihood of success on the merits," it fell short of concluding there was a "substantial likelihood" of success on the merits, as would ordinarily be required to issue a temporary injunction. Finally, the court's written order was silent as to any consideration of public interest. However, neither REV nor General RV has argued that the trial court's ruling lacked the requisite elements of an injunction under rule 1.610 ; instead, their arguments focus on whether there was sufficient evidence to support each of those elements.

      Our interpretation of what prompted the court's ruling in this regard is further informed by the repeated references the trial court made during the injunction hearings that an appellate court would ultimately need to provide guidance to the parties and the court as to the applicability and interpretation of these statutes. While we recognize these statutes are perhaps relatively new in Florida law, we would observe that to the extent this case could be considered one of first impression, the trial court's role in applying these statutes would in no way be diminished.

      Our decision in this regard is also guided by Medco, LLC v. Bailey, 152 So.3d 105, 107 (Fla. 2d DCA 2014), a case in which we reversed a trial court's denial of a motion for temporary injunction where the court's factual findings appeared to support the application of a statutory presumption, but the trial court inexplicably failed to apply that presumption in its ruling. A similar kind of error confronts us here. We need not reverse the trial court's injunction in the case at bar, though, because, unlike the rebuttable presumption at issue in Medco (which could still be overcome, depending on the evidence presented on remand, see id. ), Lazydays was entitled to a statutory remedy of injunctive relief under the facts the trial court found. Cf. Pinecrest Lakes, Inc. v. Shidel, 795 So.2d 191, 205 (Fla. 4th DCA 2001) ("[W]hen the [l]egislature provides for an injunction in these circumstances, it has deliberately made the new public duty and its corresponding right of enforcement an integrated statutory prescription.").


author: NORTHCUTT, Judge.

text:
    MOSAIC FERTILIZER, LLC, Appellant, v. Howard CURD, Floyd Deforest, Scott Mobley, Gary Bruce, David Laggner, Bryan Ibasfalean, Philip Johnson, and Angelo Logrande, on Behalf of Themselves and All Others Similarly Situated, Appellees.
    Case No. 2D17-2302
    District Court of Appeal of Florida, Second District.
    Opinion filed November 9, 2018
    David B. Weinstein and Kimberly Mello of Greenberg Traurig, P.A., Tampa, and Andrew J. Patch of Greenberg Traurig, P.A., Tampa (withdrew after briefing), for Appellant.
    Andra T. Dreyfus and Casey C. Harrison of Dreyfus Harrison, P.A., Clearwater, and F. Wallace Pope, Jr., of Johnson, Pope, Bokor, Ruppel & Burns, LLP, Clearwater, for Appellees.
   NORTHCUTT, Judge.

Mosaic Fertilizer, LLC, appeals a nonfinal order granting plaintiffs' motion for class certification. We reverse because the putative class of plaintiffs failed to demonstrate a reasonable methodology for proving classwide claims.

Howard Curd and other commercial fishermen sued Mosaic following a pollutant spill into Tampa Bay. The fishermen alleged that Mosaic owned or operated a phosphogypsum storage area near Archie Creek in Hillsborough County. Within the storage area was a pond containing the pollutant-rich wastewater from a phosphate plant. Although dikes enclosed the wastewater pond, the fishermen alleged that in the summer of 2004 the Hillsborough County Environmental Protection Commission and the Florida Department of Environmental Protection warned Mosaic that the pond was dangerously close to exceeding safe storage levels. In September 2004 Hurricane Frances swept across Florida, and on September 5, 2004, the dike gave way, spilling wastewater into Tampa Bay. In their lawsuit, the fishermen claimed that "the spilled pollutants resulted in a loss of underwater plant life, fish, bait fish, crabs, and other marine life. [Though the fishermen did not claim ownership of the damaged marine life, they claimed that the spill] resulted in damage to the reputation of the fishery products the fishermen are able to catch and attempt to sell." Curd v. Mosaic Fertilizer, LLC, 993 So.2d 1078, 1079 (Fla. 2d DCA 2008), decision quashed, 39 So.3d 1216 (Fla. 2010).

The circuit court allowed the fishermen to proceed on their claim, but ultimately it dismissed the claim as unauthorized by the economic loss rule. See generally Tiara Condo. Ass'n. v. Marsh & McLennan Cos., 110 So.3d 399, 401-07 (Fla. 2013) (discussing the origin and development of the economic loss rule). This court affirmed and certified questions of great public importance; the Florida Supreme Court quashed this court's opinion and held that the economic loss rule did not bar the fishermen from pursuing both a common law negligence claim as well as a statutory cause of action under section 376.313(3), Florida Statutes (2004). Curd v. Mosaic Fertilizer, LLC, 39 So.3d 1216 (Fla. 2010) (quashing Curd v. Mosaic Fertilizer, LLC, 993 So.2d 1078 (Fla. 2d DCA 2008) ). The supreme court concluded that section 376.313(3) provides "private causes of action to any person who can demonstrate damages as defined under the statute," id. at 1222, and that "the discharge of the pollutants constituted a tortious invasion that interfered with the special interest of the commercial fishermen to use those public waters to earn their livelihood." Id. at 1228.

On remand, the fishermen filed their fifth amended complaint and made an initial attempt to certify a class of commercial fishermen. However, the fishermen later opted to forgo class certification and instead moved to intervene or join the putative class members and proceed on a nonclass basis. The circuit court denied the motion to intervene. The fishermen appealed, and this court affirmed without opinion. Anderson v. Mosaic Fertilizer, LLC, 160 So.3d 419 (Fla. 2d DCA 2015) (table decision).

Again before the trial court, the fishermen moved for class certification. They defined the putative class members as:

Those persons engaged in the commercial catch and sale of fish, bait fish, shrimp, crabs, and other living sea creatures in the Tampa Bay and who have lost income and continue to suffer damages because of the pollution, contamination, and discharge of hazardous substances by the defendant, Mosaic.

The fishermen argued that the putative class met all of the threshold requirements of Florida Rule of Civil Procedure 1.220(a). They also asserted that the putative class met rule 1.220(b)(3)'s predominance requirement because all members are entitled to recover under the exact same legal theories and because the members sustained damages resulting from the same spill. The fishermen concluded that the "overwhelming common legal and factual aspects between the claims of the named Plaintiffs and putative class members dwarf any variation in the claims and predominate over any individualized issues."

Mosaic responded in opposition to class certification. It contended that the fishermen ultimately would be unable to prove any of their claims, and it attached a bevy of environmental impact reports authored by various government agencies as well as private environmental services firms. Mosaic asserted that all of the reports indicate that the pollutant release from the Mosaic facility was "localized, ephemeral, and resulted in no statistically significant difference in the composition of the fish and invertebrate communities" in Tampa Bay. Mosaic attacked the putative class on all grounds of rule 1.220(a) and argued that the fishermen could not demonstrate a classwide impact or a methodology for generalized proof sufficient to support certification.

The circuit court held a hearing on the motion for certification. On the first day of hearings, the fishermen presented the testimony of two plaintiffs, Eugene Nipper and Howard Curd. Nipper testified that he is a commercial fisherman who has dived in the waters of Tampa Bay since the 1970s. He recounted that since he began his career, he regularly walked on the bottom of Tampa Bay using weights and scuba equipment. Nipper related that he used to see a flourishing seabed where he walked the bottom. But after the spill, he said, he began seeing more dead sea life and noticed that the color of the water changed. Nipper stated that over time, more sponges started to come back after an initial decline following the spill. After a series of objections from Mosaic, the court ruled that Nipper was not qualified to offer opinions about the spill's impact on the condition of the water or on the marine and vegetation life. Nipper's testimony was restricted to his personal observations and recollections of after-spill changes to Tampa Bay.

Curd, a commercial fisherman in Tampa Bay for thirty years who fished primarily for blue crab, testified that in the days following the spill, his traps were filled with dead blue crab. He also stated that the year after the spill, the blue crab did not come as far into the bay as they once had. He said that every year after the spill the crab would stay farther and farther out to sea. Curd testified that several years after the spill, he was unable to catch any blue crab for two years in a row. Mosaic objected to Curd's testimony, and the court prohibited him from offering an opinion or belief about whether the spill caused a decrease in his fishing yields or whether the spill had an effect on other Tampa Bay fishermen's yields.

After the first day of hearings, the circuit court entered an order requiring further proceedings for class certification determinations. In the order, the court noted that time expired at the hearing before Mosaic presented its evidence and ordered the resumption of the hearing. It noted that after the first day of hearings, the "plaintiffs have placed in the record sufficient showing that could support the court in its discretion certifying class." The court further observed that the "common claims predominate because if the named plaintiffs can prove their damages ... they would be proving impact quite remote from the spill site and thus necessarily prove the case of the other class members." The court sua sponte amended the proposed class definition to include "holders of commercial fishing licenses who claim to have been damaged by the spill."

On the second day of hearings, Mosaic tendered the testimony of seven expert witnesses without objection. The experts gave unrebutted opinions that supported Mosaic's argument that the spill only caused localized, ephemeral, and statistically insignificant changes in sea-life communities.

More specifically, the experts opined that the contents of the spill were so quickly diluted and dispersed that there was no scientifically valid means of predicting or even inferring the spread or presence of any pollutant outside of the immediate impact area. After Hurricane Frances, the experts opined, Tampa Bay became so inundated with pollutants and debris from storm water runoff that there was no reliable method of distinguishing Mosaic's pollutants from the river and creek sediments, petroleum products, household chemicals, and untreated sewages that were flushed into the bay. Mosaic's experts concluded that there were no long-term or population-level effects on any species of marine organism and that the only effects on marine life were isolated to the immediate area of the spill. Mosaic also presented an expert on commercial fishing economics who opined that the various fishing areas covered by the putative class are so diverse in targeted species, contain such diverse biology and life history of those species, as well as changes in those species' characteristics over time, that it would be impossible to correlate or make predictions about those fishing areas.

After the two days of hearings, the circuit court entered an order bifurcating the case into liability and damages phases and cited to Engle v. Liggett Group, Inc., 945 So.2d 1246 (Fla. 2006). The court defined the liability phase as extending "up to and including determination of the geographic scope of potentially harmful effects of the spill." The order suggested that after all liability issues were resolved the court would consider decertification for the determination of individual damages. The court also granted the fishermen's motion for class certification only as to the liability phase. It found that the fishermen had met their burden under rule 1.220(a) and that the liability issues-as the court defined them-are common questions which predominate the individual damages issues. Mosaic appealed the order bifurcating the case and certifying the class; we have jurisdiction. See Fla. R. App. P. 9.030(b)(1)(B) ; 9.130(a)(3)(C)(vi).

We review orders granting class certification for an abuse of discretion. Sosa v. Safeway Premium Fin. Co., 73 So.3d 91, 103 (Fla. 2011). " '[T]he determination that a case meets the requirements of a class action is a factual finding,' which falls within a circuit court's discretion." Id. (quoting Bouchard Transp. Co. v. Updegraff, 807 So.2d 768, 771 (Fla. 2d DCA 2002) ). The circuit court abuses its discretion where its order is not supported by competent, substantial evidence or if it makes an erroneous conclusion of law. Id. at 103.

To obtain class certification, the proponent carries the burden of proving the elements required under rule 1.220. See id. at 106 ; Ernie Haire Ford, Inc. v. Gilley, 903 So.2d 956, 958 (Fla. 2d DCA 2005) ; Marco Island Civic Ass'n v. Mazzini, 805 So.2d 928, 930 (Fla. 2d DCA 2001). Rule 1.220(a) contains four threshold elements that must be satisfied to obtain class certification:

(1) the members of the class are so numerous that separate joinder of each member is impracticable ["numerosity"], (2) the claim or defense of the representative party raises questions of law or fact common to the questions of law or fact raised by the claim or defense of each member of the class ["commonality"], (3) the claim or defense of the representative party is typical of the claim or defense of each member of the class ["typicality"], and (4) the representative party can fairly and adequately protect and represent the interests of each member of the class ["adequacy"].

Additionally, the proponent of class certification must satisfy one of the three subdivisions of rule 1.220(b). The fishermen alleged and the circuit court found that the putative class satisfied subdivision 1.220(b)(3), which requires that

the questions of law or fact common to the claim or defense of the representative party and the claim or defense of each member of the class predominate over any question of law or fact affecting only individual members of the class, ["predominance"] and class representation is superior to other available methods for the fair and efficient adjudication of the controversy ["superiority"].

Rule 1.220(b)(3)'s superiority requirement requires the court to weigh the benefits of class certification versus proceeding on an individual, nonclass basis. See Sosa, 73 So.3d at 116 (instructing that courts should consider three factors: whether a class action would provide the only economically viable remedy to class members, the likelihood of individual claims large enough to justify the expense of individual litigation, and whether a class action cause of action is manageable). Rule 1.220(b)(3)'s predominance requirement, however, calls upon the court to make a "proof-based inquiry." Id. at 112. A proponent of certification must demonstrate a "reasonable methodology for generalized proof of class-wide impact" whereby "proving his or her own individual case, [the putative class representative] necessarily proves the cases of the other class members." Id.

In this case, the fishermen failed to carry their burden of positing any reasonable methodology for proving classwide claims. The circuit court sua sponte amended the putative class to include any holders of commercial fishing licenses who claim to have been damaged by the Mosaic spill. The fishermen therefore had the burden of proving-beyond mere "supposition"-some methodology for generalized proof by which the class representative would necessarily prove the cases of all other commercial fishing license holders who claim to have been damaged by the spill. Ernie Haire Ford, 903 So.2d at 958.

The fishermen's support for class certification amounted only to the testimony of Curd and Nipper. Both men testified that they were commercial fishermen who worked in the Tampa Bay waters for over thirty years. Both men testified that they witnessed changes in certain marine life concomitant with the Mosaic spill. The circuit court restricted both men's opinion testimony and ruled that they were not qualified to offer any opinions about the spill's impact on the condition of the water, the spill's impact on the marine and vegetation life, or whether the spill caused any decrease in the Tampa Bay fishing yields. Taken as a whole, it is not possible to view Curd's and Nippers' testimony as plausibly putting forth a reasonable methodology for proving classwide claims. The circuit court therefore abused its discretion because there was no competent, substantial evidence supporting its "proof-based inquiry" into and ultimate determination of rule 1.220(b)(3)'s predominance requirement. Sosa, 73 So.3d at 112.

Although the circuit court bifurcated the case into a liability and damages phases in the vein of Engle, this bifurcation does not change our decision. First, it is not necessarily clear that Engle prospectively authorized bifurcation as a means of meeting rule 1.220(b)(3)'s requirements. See Engle, 945 So.2d at 1267-71 ; see also Fla. R. Civ. P. 1.220(d)(4)(A) ("When appropriate ... a claim or defense may be brought or maintained on behalf of a class concerning particular issues."). The Engle court cited numerous federal cases which certified liability questions and which left damages questions for individual resolution.

Engle, 945 So.2d at 1268-69. Engle also noted a split of that federal authority on the issue. Id. at 1269 n.11. Ultimately, the Engle court approved the certification of certain liability issues holding that rule 1.220(b)(3)'s predominance test was satisfied on the facts presented. However, the Engle court also underscored the idiosyncratic nature of that case noting that the procedural posture was "unique and unlikely to be repeated," id. at 1270 n.12, and describing its holding as the "pragmatic solution" to those unique circumstances. Id. at 1270.

Even assuming that Engle authorized the circuit court to use rule 1.220(d)(4)(A) to certify classwide liability issues, the fishermen did not present a reasonable methodology for proving those issues classwide. Again, the court's order certifying class defined the liability phase as containing all issues up to and including determination of the geographic scope of potentially harmful effects of the spill. Yet the court's order acknowledges that the "plaintiffs' yet-to-be-revealed evidence of the effect of the spill" is a question to be resolved at the liability stage. Without making some antecedent showing of the methodology by which the fishermen intended to prove classwide claims, the fishermen failed to meet the burden imposed by rule 1.220(b)(3).

Accordingly, we reverse the order on appeal and remand for further proceedings consistent with this opinion.

Reversed and remanded.

KELLY and SALARIO, JJ., Concur.


author: Per Curiam.

text:
    William J. BUCK, Appellant, v. Julie L. JONES, Secretary, Florida Department of Corrections, Appellee.
    No. 1D17-3429
    District Court of Appeal of Florida, First District.
    November 13, 2018
    William J. Buck, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Brett Coleman, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

William J. Buck received a disciplinary report for possession of stimulants, and after denial of his grievance by the institution, he sought review with the Department of Corrections but his grievance appeal was returned to him as untimely. He petitioned the circuit court to compel the Department of Corrections to comply with its own rules regarding timeliness, but the circuit court denied relief. His certiorari petition in this Court is treated as an appeal. See Rivera v. Moore , 825 So.2d 505, 506 (Fla. 1st DCA 2002) ("Appellant's petition filed in the trial court sought to compel the Department to comply with its own rules.... [T]his matter is appropriately treated as an appeal").

Inmates have a clear legal right to a response to a timely-appealed grievance challenging a disciplinary report. Waters v. Department of Corrections , 144 So.3d 613, 615 n.3 (Fla. 1st DCA 2014) ("An inmate has a due process right to the agency complying with its own rules"; "[t]his includes ensuring the Department complies with inmate grievance rules."); Hoever v. Fla. DOC , 156 So.3d 543, 544 (Fla. 1st DCA 2015) ("[A]ppellant had the right to a response to his timely grievance appeal challenging his disciplinary report.").

Buck's grievance appeal was timely submitted, as indicated by the dated grievance appeal and the legal mail date stamp from the Department; indeed, the Department concedes it was timely under Waters , 144 So.3d 613 (finding the Department failed to rebut dated grievance appeal and legal mail stamp, which was evidence of timeliness) and Hoever , 156 So.3d 543 (finding the Department failed to rebut the presumption that the grievance appeal was timely mailed).

Accordingly, we reverse the circuit court's dismissal of Appellant's Petition for Writ of Mandamus and remand for entry of an order compelling the Secretary of the Department of Corrections to consider the merits of Appellant's grievance appeal.

REVERSE and REMAND .

Wetherell, Makar, and Kelsey, JJ., concur.


text:
    Daniel HOWE, Petitioner, v. FLORIDA DEPARTMENT OF CORRECTIONS, Respondent.
    No. 1D18-4345
    District Court of Appeal of Florida, First District.
    November 9, 2018 Rehearing Denied December 28, 2018
    Daniel Howe, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kenneth S. Steely, General Counsel, Florida Department of Corrections, Tallahassee, for Respondent.
   Per Curiam.

The petition seeking belated appeal is denied. See Powell v. Fla. Dep't of Corr. , 727 So.2d 1103 (Fla. 1st DCA 1999).

Wetherell, Makar, and Winsor, JJ., concur.


text:
    DEPARTMENT OF HEALTH and The Public Health Trust of Miami-Dade County, Florida, d/b/a Jackson South Community Hospital, Appellants, v. SHANDS JACKSONVILLE MEDICAL CENTER, INC., d/b/a UF Health Jacksonville, JFK Medical Center Limited Partnership, d/b/a JFK Medical Center; Orange Park Medical Center, Inc., d/b/a Orange Park Medical Center; Florida Health Sciences Center, Inc., d/b/a Tampa General Hospital; Lee Memorial Health System, d/b/a Lee Memorial Hospital; Bayfront HMA Medical Center, LLC, d/b/a Bayfront Health-St. Petersburg, and St. Joseph's Hospital, Inc., d/b/a St. Joseph's Hospital, Appellees.
    JFK Medical Center Limited Partnership d/b/a JFK Medical Center; Orange Park Medical Center, Inc., d/b/a Orange Park Medical Center, and The Public Health Trust of Miami-Dade County, Florida, d/b/a Jackson South Community Hospital, Appellants, v. Shands Jacksonville Medical Center, Inc., d/b/a UF Health Jacksonville, Department of Health, Florida Health Sciences Center, Inc., d/b/a Tampa General Hospital, Lee Memorial Health System d/b/a Lee Memorial Hospital, Bayfront HMA Medical Center, LLC, d/b/a Bayfront Health-St Petersburg, and St. Joseph's Hospital, Inc., d/b/a St. Joseph's Hospital, Appellees.
    No. 1D17-1713 No. 1D17-1717
    District Court of Appeal of Florida, First District.
    November 13, 2018
    William Dean Hall, III, Marc W. Dunbar, and Daniel R. Russell of Jones Walker LLP, Tallahassee; Jason Gonzalez and Amber Stoner of Shutts & Bowen LLP, Tallahassee; and Jay Patrick Reynolds, Chief Legal Counsel, and Michael J. Williams, Assistant General Counsel, Florida Department of Health, Tallahassee, for Department of Health.
    Thomas F. Panza, Jennifer K. Graner, Brian S. Vidas, and Paul C. Buckley of Panza, Maurer & Maynard, P.A., Fort Lauderdale, for The Public Health Trust of Miami-Dade County, Florida.
    Stephen A. Ecenia, J. Stephen Menton, and Gabriel F. V. Warren of Rutledge Ecenia, P.A., Tallahassee, for JFK Medical Center and Orange Park Medical Center.
    Seann M. Frazier and Marc Ito of Parker, Hudson, Rainer & Dobbs, LLP, Tallahassee, for UF Health Jacksonville, Lee Memorial Health System, and Tampa General Hospital.
    Karen A. Putnal and Jon C. Moyle of Moyle Law Firm, Tallahassee, for St. Joseph's Hospital.
    Geoffrey D. Smith, Timothy B. Elliott and Corinne Porcher of Smith & Associates, Tallahassee, for Bayfront Medical Center.
   Per Curiam.

These two appeals seek review of an administrative order that found proposed rules of the Department of Health ("the Department") for allocating the minimum number of trauma centers throughout the state to be an invalid exercise of delegated legislative authority. This case ultimately revolves around the Department's interpretation of the word "need," a term undefined by the applicable statutes. Under the prior rules, the Department interpreted the number of trauma centers "needed" as a maximum. In the proposed rules, the Department sought to reflect its new interpretation that the number "needed" was a minimum, rather than a maximum. The Department asserts the "sub-cap" it created by promulgating maximums was not within its delegated statutory authority. Because the term "need" is ambiguous as to whether it refers to a maximum or minimum, and the Department's interpretation is given deference when it is within the range of reasonable interpretations, we agree and reverse.

BACKGROUND

In 1985, the Legislature established a statewide trauma system. The law governing the administration of the trauma system is set forth in Part II of Chapter 395, Florida Statutes. In order to provide timely access and uniformity in trauma care, the state was divided into nineteen Trauma Service Areas ("TSAs"), each of which should provide at least one Level I or II trauma center, §§ 395.402(4)(a) & (b), Fla. Stat. (2016). However, the Legislature determined there should be no more than a total of 44 trauma centers within the State. § 395.402(4)(c), Fla. Stat. (2016).

Beyond these statutory guidelines, the primary responsibility for planning, establishing, and implementing the trauma system was delegated to the Department. § 395.40(3), Fla. Stat. To ensure an integrated trauma system across the state, the Department conducted an annual assessment to determine how many trauma centers were needed. § 395.402(2)(b), Fla. Stat. (2016). Based on the results of this assessment, the Department "allocate[d], by rule, the number of trauma centers needed for each [TSA]." § 395.402(4)(b), Fla. Stat. (2016).

In 2014, the Department promulgated rules (the "Old Rules") implementing a scoring system to determine how many trauma centers were needed per TSA. See Fla. Admin. Code R. 64J-2.010. Based on the resulting scores, the Department assigned a maximum number of trauma centers for each TSA.

After implementation of this criteria, the Department found that with each new trauma center, the associated TSA's assessed need would be reduced for the following year. Concerned that this could potentially lead to TSAs with a maximum "need" of zero, the Department sought to initiate rulemaking to revise the rules to provide that the scores should be considered a minimum rather than a maximum.

On September 1, 2016, the Department proposed the series of amendments to rules 64J-2.010, 64J-2.012, 64J-2.013, and 64J-2.016 (the "Proposed Rules"). The Proposed Rules utilized the same methodology for assessing the numerical need for trauma centers in each TSA but resulted in the approval of a minimum of 25 trauma centers. The rules also created a "tie-breaker" system in the event the number of trauma center applicants or provisional trauma centers would cause the state to exceed the statutory cap.

Appellees filed rule challenge petitions asserting, among other things, that the Proposed Rules exceeded the Department's rulemaking authority; enlarged, modified, or contravened the laws being implemented; or vested the Department with unbridled discretion.

At the final hearing on this matter, the Department's representative was asked a number of hypothetical questions regarding the trauma centers approval process under the Proposed Rules. In a situation where there were 43 approved trauma centers in the state but one TSA did not have a Level I or II trauma center, the Department stated it would hold the 44th spot open for the TSA without a trauma center. It further represented the same outcome would occur if there were 43 approved centers and one TSA had not reached its minimum under the Proposed Rules.

The Administrative Law Judge ("ALJ") held that while the Department did not exceed its grant of rulemaking authority and the proposed rules were not arbitrary or capricious, the rules contravened the laws being implemented and vested unbridled discretion in the Department.

MOOTNESS

After oral argument in this case, the Legislature substantially amended sections 395.402 and 395.4025. Ch. 2018-66, Laws of Florida. As stated above, under prior statutes the Department was tasked with "allocat[ing], by rule, the number of trauma centers needed for each trauma service area." § 395.402(4)(b), Fla. Stat. (2016). See also § 395.4025(1), Fla. Stat. (2016) (requiring that "the department shall establish the approximate number of trauma centers needed to ensure reasonable access to high-quality trauma services"). However, under these statutes as revised in 2018, the Legislature itself now provides the maximum number of trauma centers for each service area. § 395.402(1)(c), Fla. Stat. (2018). No longer does the Department have the authority to select or establish the appropriate number of trauma centers. § 395.4025(1), Fla. Stat. (2018). The new statutes prohibit the Department from approving trauma centers-or even accepting letters of intent-for service areas that have already met the new statutory maximums, absent certain extenuating circumstances. § 395.4025(3) & (4), Fla. Stat. (2018). In other words, the entire statutory basis for the Proposed Rules at issue in this case has been repealed.

We find that the rule challenge here is moot. See Montgomery v. Dep't of Health & Rehab. Servs. , 468 So.2d 1014 (Fla. 1st DCA 1985). "A moot case generally will be dismissed." Godwin v. State , 593 So.2d 211, 212 (Fla. 1992). However, a moot appeal will not be dismissed if any of three exceptions apply: (1) the issues are of great public importance; (2) the issues are likely to recur; and (3) collateral legal consequences flow from the issues to be resolved that may affect the rights of a party. Schweickert v. Citrus County Florida Bd. , 193 So.3d 1075, 1078 (Fla. 5th DCA 2016). At the least, collateral consequences of this case that may affect the rights of a party exist, regardless of the mootness of the Proposed Rule, in particular, the challengers' right to attorney's fees under section 120.595(2), Florida Statutes. This possible right to attorney's fees is sufficient for this court to decide this case in spite of it mootness. See Soud v. Kendale, Inc. , 788 So.2d 1051, 1053 (Fla. 1st DCA 2001) (rendering an opinion on the merits in a moot appeal because the appellee sought attorney's fees in the trial court after dismissal). For this reason, we proceed to the merits of this appeal.

ANALYSIS

We review the ALJ's conclusions of law and determinations of statutory interpretation de novo. See J.S. v. C.M. , 135 So.3d 312, 315 (Fla. 1st DCA 2012) ; Abbott Labs. v. Mylan Pharms., Inc. , 15 So.3d 642, 654 (Fla. 1st DCA 2009). To the extent that an issue depends on the ALJ's finding of fact, we only review whether the finding is supported by competent, substantial evidence. Abbott Labs. , 15 So.3d at 654.

The ALJ determined that the Proposed Rules were an invalid exercise of delegated legislative authority because (1) it would render superfluous the requirement that trauma centers be located in a TSA with a need under the prior version of section 395.4025(5) where all TSAs would always have a need; (2) the rule minimums would implicitly supersede the statutory minimum provided by the prior version of section 395.402(4) ; and (3) it vests the Department with unbridled discretion to permit it to reserve trauma center slots for TSAs that have not satisfied their rule minimum. See § 120.52(8)(c) & (d), Fla. Stat.

First, the prior version of section 395.4025(5) provided that provisional trauma centers "shall be located in a trauma service area that has a need for such a trauma center." (emphasis added). The ALJ held that because the Department's allocation of minimum need would mean all TSAs would "always" have a need, the Proposed Rules render the prior version of section 395.4025(5) superfluous. The ALJ's holding is not accurate under the statute or the Proposed Rules.

There is nothing in the prior version of section 395.4025(5) that bars multiple TSAs from having needs at the same time. So long as the state is under the statutory cap, multiple TSAs may find an additional trauma center to be desirable or useful despite the fact that it has already met its minimum requirements by statute or rule. See Need , Merriam-Webster Online Dictionary , https://www.merriam-webster.com/dictionary/need (last visited Aug. 9, 2018) (defining "need" as "a lack of something requisite, desirable, or useful").

Further, TSAs would not "always" have a need. Once the former statewide cap of 44 trauma centers was met, no TSA would have a need. See § 395.402(4)(c), Fla. Stat. (2016). If the state were nearing the cap, priority would have been given to any TSA that had not met its minimum provided by the Proposed Rules. The ability to reserve slots is implied in the Department's use of the word "minimum" in the Proposed Rules. Accordingly, the Department would deny any trauma center application in a TSA that had already met its prescribed rule minimum when doing so would foreclose the opportunity for another TSA to meet its rule minimum.

This is all within its authority, as the Department was tasked with establishing "the approximate number of trauma centers needed to ensure reasonable access to high-quality trauma services." See § 395.4025(1), Fla. Stat. (2016) (emphasis added). The Legislature's use of the words "approximate" and "reasonable" makes unlikely that it intended "need" to refer to a defined and limited maximum. The former section 395.4025(5) was not rendered superfluous or contravened by the Proposed Rules.

Second, the prior version of section 395.402(4) provided both a floor for the individual TSAs (one) and a ceiling for the state (44). § 395.402(4)(b) & (c), Fla. Stat. (2016). The ALJ held that the Proposed Rules implicitly superseded the prior version of section 395.402(4), which already had established a minimum number of trauma centers per TSA.

The statutory floor in the prior version of section 395.402(4) provided a universal minimum without consideration of a TSA's actual or approximate need. Between the floor and the ceiling, the Department was tasked with allocating (distributing or designating) the remaining 25 available trauma centers slots amongst the TSAs based upon their approximate need.

§§ 395.402(4)(b), 395.4025(1), Fla. Stat. (2016) ; see Allocate , Merriam-Webster Online Dictionary , https://www.merriam-webster.com/dictionary/allocate (last viewed Aug. 9, 2018) (defining "allocate" as either (1) "to apportion for a specific purpose or to particular persons or things : distribute" or (2) "to set apart or earmark : designate").

It is reasonable that the Department would provide each TSA's minimum need to support the purpose of the statute, which is access. The Proposed Rules leave open the opportunity to distribute all available trauma center slots, if needed. The Old Rules actually rendered the prior version of section 395.402(4) superfluous in providing for maximum of 27 trauma centers for the state, prohibiting it from ever reaching the 44 total trauma centers allowed.

Third, the ALJ held that the Proposed Rules vested the Department with unbridled discretion insofar as it could reserve trauma center slots under the statutory cap for TSAs that had one trauma center-satisfying the statutory minimum under the prior version of section 395.402(4)(b) -but that had not yet met their rule minimum. The ALJ held: "In sum, the Proposed Rules are invalid because they confer discretion on the Department that is not articulated in the statutes the Proposed Rules would implement."

As discussed above, the Department was tasked with allocating the approximate number of trauma center slots to the TSAs to ensure reasonable access to trauma care. It was rational for the Department to reserve slots for TSAs without sufficient trauma centers to satisfy their need assessment under the Proposed Rules to ensure reasonable access. Because the statute laid out the framework with little guidance regarding implementation, the Legislature granted the Department wide berth to make the pure policy decisions that would support the interpretation of need as a maximum or minimum. Accordingly, we find the Proposed Rules do not vest the Department with unbridled discretion.

CONCLUSION

The final order is reversed and the cause remanded in accordance with this opinion.

REVERSED .

Makar, Winokur, and M.K. Thomas, JJ., concur.

      The appeals at issue were consolidated for travel and are now consolidated for disposition.

      The Legislature substantially amended the applicable statutes in this case, in particular sections 395.402 and 395.4025, after oral argument. The effect of this amendment is discussed below. Unless otherwise indicated, the statutory citations listed here refer to the 2016 version of these statutes.

      The following entities challenged the validity of the Proposed Rules in a consolidated proceeding: Shands Jacksonville Medical Center, Inc. d/b/a UF Health Jacksonville ("Shands"), Florida Health Sciences Center, Inc. d/b/a Tampa General Hospital ("Tampa General"), Lee Memorial Health System d/b/a Lee Memorial Hospital ("Lee Memorial"), Bayfront HMA Medical Center, LLC d/b/a Bayfront Health - St. Petersburg ("Bayfront"), St. Joseph's Hospital Inc., d/b/a St. Joseph's Hospital ("St. Josephs,"). Each of these parties operates a trauma center.
      The following entities intervened in this proceeding on behalf of the Department: JFK Medical Center Limited Partnership, d/b/a JFK Medical Center ("JFK"), The Public Health Trust of Miami-Dade County, Florida d/b/a Jackson South Community Hospital ("Public Health Trust"), Orange Park Medical Center, Inc. d/b/a Orange Park Medical Center ("Orange Park"). JFK and Public Health Trust submitted letters of intent to apply to operate as a trauma center; Orange Park already operates a provisional trauma center.

      We find that Lund v. Dep't of Health , 708 So.2d 645 (Fla. 1st DCA 1998), does not require a different conclusion. In Lund we dismissed a moot appeal in a license disciplinary action, finding that the possibility of attorney's fees pursuant to section 120.595(5) does not constitute a collateral legal consequence. Id. at 646. However, payment of attorney's fees under subsection (5) of that statute is conditional, permitted only when the appellate court determines that the appeal was "frivolous, meritless, or an abuse of the appellate process, or that the agency action which precipitated the appeal was a gross abuse of the agency's discretion." Fees here are sought under section 120.595(2) , which requires that "a judgment or order shall be rendered against the agency for reasonable costs and reasonable attorney's fees," "[i]f the appellate court or administrative law judge declares a proposed rule or portion of a proposed rule invalid," unless "the agency demonstrates that its actions were substantially justified or special circumstances exist which would make the award unjust." Stated differently, fees under subsection (2) are required unless an exception applies, whereas fees under subsection (5) are wholly conditional. We find this distinction to be relevant here, so that the request for fees under section 120.595(2) allows us to decide this moot appeal.