Filing # 22406299 E-Filed 01/11/2015 07:08:22 PM

Florida Supreme Court Case No. 15-13LT Case No. 1D14-3320

SUPREME COURT OF FLORIDA

PALM CONSTRUCTION OF WEST FLORIDA

Petitioner,

STATE OF FLORIDA,DEPARTMENT OF FINANCIAL SERVICES

DIVISION OF WORKERS' COMPENSATION

Respondent.

O

PETITIONER'S INITIAL BRIEF ON JURISDICTIONO

UBennett M. Miller

Florida Bar No. 526312Kristian E. Dunn

Florida Bar No. 647678Dunn & Miller, P.A.

215 E. TharpeTallahassee, FL 32303

Attorneys for Petitioner

TABLE OF CONTENTS

TABLE OF CONTENTS.....................................................................i

TABLE OF AUTHORITIES................................................................ii

STATEMENT OF THE CASE AND FACTS.............................................1

JURISDICTIONAL STATEMENT.........................................................2

SUMMARY OF THE ARGUMENT.......................................................3

ARGUMENT..................................................................................3

I. THE FIRST DISTRICT COURT OF APPEAL DECISION UPHOLDINGTHE DENIAL OF RELIEF AFTER THE FAILURE TO ANSWER AREQUEST FOR ADMISSIONS CONFLICTS WITH A RECENT DECISIONOF THE FOURTH DISTRICT COURT OF APPEAL. .............................3

CONCLUSION................................................................................8

CERTIFICATE OF SERVICE................................................................8

CERTIFICATE OF COMPLIANCE........................................................9

APPENDIX ONE............................................................................10

1

TABLE OF CITATIONS

Florida Constitution

Art. V, Section 3(b)(3).......................................................................2

Cases Page(s)

Aravena v. Miami-Dade County, 928 So. 2d 1163 (Fla. 2006)........................2

Crossley v. State, 596 So. 2d 447, 449 (Fla. 1992) ......................................2

Fla. Dep't of Financial Servs. v. Tampa Serv. Co., Inc.884 So. 2d 252, 253 (Fla. 1st DCA 2004) ................................................4

Ford Motor Company v. Kikis, 401 So.2d 1341, 1342 (Fla. 1981).....................2

United Automobile Insurance Company v. West Hollywood Pain &Rehabilitation Center, No. 4D13-2734 (Fla. 4th DCA October 15, 2014).........3, 6

Statutes Page(s)

Florida Statutes 120.57(2)...................................................................5

Rules Page(s)

Fla. R. App. P. 9.030(a)(2)(A)(iv)..........................................................3

Fla. R. Civ. P. 1.370(a)................................................................3, 4, 6

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STATEMENT OF THE CASE AND FACTS

The Department of Financial Services, Division of Workers' Compensation

("Department") issued a Stop-Work Order and an Amended Order of Penalty

Assessment against the Petitioner, Palm Construction Company of West Florida,

("Palm Construction"), for failure to obtain workers' compensation coverage when

required by law. (Op. at 2). Palm Construction sought an evidentiary hearing and

the matter was referred to the Division of Administrative Hearings. (Op. at 2).

After Palm Construction failed to timely respond to a request for admissions, the

Department filed a Motion to Deem Matters Admitted and to Relinquish

Jurisdiction. ("Motion"). (Op. at 2). The Administrative Law Judge ("ALJ")

granted the motion. (Op. at 2). Later the same day, Palm Construction filed an

emergency motion to reopen the case asserting that the Department's discovery

requests had been answered. (Op. at 2). The ALJ denied the motion stating that the

Division of Administrative Hearings no longer had jurisdiction over the matter

because no material facts remained in dispute. (Op. at 2). The First District Court

of Appeal found that the ALJ properly deemed the matters admitted and correctly

relinquished jurisdiction. (Op. at 3). The First District Court of Appeal also found

that the Division of Administrative Hearings no longer had jurisdiction of the

matter, after the Motion had been granted. (Op. at 3). The First District Court of

Appeal also determined that the Department properly entered a final order which

assessed a penalty of $32,983.04 against Palm Construction. (Op. at 2).

Page 1 of 9

JURISDICTIONAL STATEMENT

The Florida Supreme Court has discretionary jurisdiction to review a

decision of a District Court of Appeal that expressly and directly conflicts with a

decision of another District Court of Appeal on the same point of law. Article V,

Section 3(b)(3) Florida Constitution (1980). Fla. R. App. P. 9.030(a)(2)(A)(iv).

A conflict does not need to be identified in the opinion for it to be considered

"express and direct;" rather it is sufficient that the opinion discusses the legal

principles that it applied to reach its decision. Ford Motor Company v. Kikis, 401

So.2d 1341, 1342 (Fla. 1981) (finding basis for exercise of discretionary

jurisdiction where the district court's opinion discussed the basis upon which it

reversed the trial court's entry of a directed verdict, even though the district court

did not explicitly identify a conflicting decision in the opinion).

Furthermore, an express and direct conflict exists when two decisions are

irreconcilable. Aravena v. Miami-Dade County, 928 So. 2d 1163 (Fla. 2006);

Crossley v. State, 596 So. 2d 447, 449 (Fla. 1992).

Page 2 of 9

SUMMARY OF THE ARGUMENT

The First District Court of Appeal's December 5, 2014 opinion in this case

conflicts with the Fourth District Court of Appeal's October 15, 2014 decision in

United Automobile Insurance Company v. West Hollywood Pain & Rehabilitation

Center, No. 4D13-2734 (Fla. 4th DCA October 15, 2014). The First District Court

ofAppeal ruled that the Petitioner, Palm Construction, was not entitled to relief for

failure to timely answer a request for admissions even though the answer was

tendered two business days after the deadline. The Fourth District Court ofAppeal

ruled that it is an abuse of discretion to deny relief from the failure to answer a

request for admissions where the opposing party cannot show prejudice.

Because the Department in this case cannot show prejudice, the failure to

grant relief to Palm Construction constitutes an irreconcilable difference between

the two cases.

ARGUMENT

I. THE FIRST DISTRICT COURT OF APPEAL UPHOLDING THEDENIAL OF RELIEF AFTER THE FAILURE TO ANSWER A REQUESTFOR ADMISSIONS CONFLICTS WITH A RECENT DECISION OF THEFOURTH DISTRICT COURT OF APPEAL.

A finding by the First District Court ofAppeal that a movant was not entitled

to relief from admissions resulting from a failure to timely respond to a request for

admissions under Fla. R. Civ. P. 1.370(a) expressly and directly conflicts with a

Page 3 of 9

conclusion of the Fourth District Court of Appeal that a similarly situated movant

was entitled to relief.

The opinion of the First District Court of Appeal in the instant matter

reached the conclusion that a response by Palm Construction to a request for

admissions that was returned to the Respondent two business days after the agreed

upon due date was untimely under Fla. R. Civ. P. 1.370(a). (Op. at 3). The opinion

reached the conclusion that because the failure to respond resulted in all of the

matters in dispute being deemed admitted, the Division ofAdministrative Hearings

no longer had jurisdiction. (Op. at 3). The First District Court ofAppeal concluded

that the Petitioner failed to properly document any objections to the relinquishment

of jurisdiction by timely requesting relief with the Department. (Op. at 3). The

opinion reasoned that because no request for relief was made directly to the

Department, thereafter the Department properly entered a final order imposing an

administrative penalty of $32,983.04. (Op. at 3).

The opinion of the First District Court of Appeal in this case relies upon a

previous decision of that court finding that a party was not entitled to relief when

there was a nine month delay in the answering of the requests for admissions. (Op.

at 3), citing Fla. Dep't of Financial Servs. v. Tampa Serv. Co., Inc. 884 So. 2d 252,

253 (Fla. 1st DCA 2004). In Fla. Dep't of Financial Servs., the appellant was

served with a request for admissions, but failed to answer that request more than

nine months after the deadline and thereafter failed to seek relief with the trial

Page 4 of 9

court. The court held that it was proper to grant summary judgment in favor of the

opposing party. I

In the instant case, Palm Construction provided the responses to the request

for admissions two business days after the deadline and twenty-two days before the

granting of the Motion. While the First District Court of Appeal notes that Palm

Construction did not file a response to the Motion, it is also true that the

Department did not withdraw the motion after receiving the answers or admit to

the tribunal that the Department was in possession of the answers before relief was

granted. After the motion was granted, Palm Construction timely sought relief by

filing a motion with the Administrative Law Judge alerting the Administrative Law

Judge of the error. (Op. at 3). The Petitioner provided the Respondent with a copy

of that motion.

The First District Court of Appeal concludes that the motion for relief was

misfiled, because the Division of Administrative Hearings no longer had

jurisdiction. (Op. at 3). Regardless of whether the Division of Administrative

Hearings had relinquished jurisdiction, the Department was on notice that answers

to the request for admissions had been received and there was no prejudice. If the

Division of Administrative Hearings no longer had jurisdiction, then the copy of

the motion provided to the Department by Palm Consrtuction was sufficient to

demonstrate a request for relief from the technical violation of the rules governing

admissions without a need for a formal request for a §120.57(2), Fla. Stat. hearing.

Page 5 of 9

More over, after the filing of the Motion, the Department had attended a

deposition by the Petitioner and filed a Notice of Deposition to schedule the

deposition of another witness. The conduct of the Department demonstrated an

understanding that the answers had been received and the dispute would continue.

In contrast, the Fourth District Court ofAppeal recently decided the case of

United Automobile Insurance Company v. West Hollywood Pain & Rehabilitation

Center, No. 4D13-2734 (Fla. 4th DCA October 15, 2014). United holds that it is an

abuse of discretion for a tribunal to enter an order denying relief to a movant who

failed to timely respond to a request for admissions under Fla. R. Civ. P. 1.370(a),

where the opposing party has not shown prejudice. (United Op. at 2).

In United, the appellant failed to respond to a request for admissions under

Fla. R. Civ. P. 1.370(a) for several weeks. (United Op. at 2). The appellant argued

to the trial court that the mistake was inadvertent. (United Op. at 2). The trial court

denied the motion for relief and thereafter granted a motion for summary

judgment. (United Op. at 2). The Fourth Circuit Court ofAppeal reversed, holding

that despite the lapse of time between the deadline and seeking relief, the movant

was entitled to an adjudication of the case on the merits. (United Op. at 2). The

Fourth Circuit Court ofAppeal reasoned that because the appellee had received the

answers by the time the tribunal took action on the motion for relief and the

appellee had notice of the dispute between the parties while the motion was

Page 6 of 9

pending, it would be a departure from the essential requirements of the law to deny

relief from the admissions. (United Op. at 2 - 3).

In this case, Palm Construction had provided the answers to the Department

by the time the tribunal took action on the motion for relief. The Department had

notice of the dispute between the parties while the motion was pending. The

granting of the Motion had the effect of granting summary judgment for the

Department. Therefore, under the standard set out by the Fourth District Court of

Appeal, it would be a departure from the essential requirements of the law to deny

relief to the Petitioner. The First District Court of Appeal did not reach the same

conclusion.

As demonstrated above, the opinions of the two District Courts of Appeal

are irreconcilable. Therefore, an express and direct conflict exists between the

opinion of the First District Court of Appeal in this case and the decision of the

Fourth District Court of Appeal. As such, the Petitioner requests this Court invoke

discretionary jurisdiction to address and resolve the conflict.

Page 7 of 9

CONCLUSION

For the reasons stated above, Palm Construction respectfully requests that

this Court accept jurisdiction to review the First District Court ofAppeal's decision

below, and thereby allow this Court to consider the merits of Palm Construction's

arguments.

Bennett M. MillerFlorida Bar. No. 526312Dunn & Miller, P.A.215 E. TharpeTallahassee, FL 32303Attorneys for Petitioner(850) 443-4010

CERTIFICATE OF SERVICE

WE HEREBY CERTIFY that a true copy of the foregoing was mailed this

12th day of January, 2015 to all parties on the service list below.

Mr. Alexander BrickCounsel for the RespondentDepartment of Financial Services, Division of Workers' Compensation200 E. Gaines StreetTallahassee, FL 32399

liennett M. MillerFlorida Bar No. 526312

Page 8 of 9

CERTIFICATE OF COMPLIANCE

WE HEREBY CERTIFY that this document complies with the requirements

of Fla. R. App. P. 9.100 (1). This document is being submitted in Times New

Roman 14 point font.

Bennett M. MillerFlorida Bar No. 526312

Page 9 of 9

APPENDIX ONE

IN THE DISTRICT COURT OF APPEALFIRST DISTRICT, STATE OF FLORIDA

PALM CONSTRUCTION NOT FINAL UNTIL TIME EXPIRES TOCOMPANY OF WEST FILE MOTION FOR REHEARING ANDFLORIDA, DISPOSITION THEREOF IF FILED

Appellant, CASE NO. 1D13-4847

v.

DEPARTMENT OFFINANCIAL SERVICES,DIVISION OF WORKERS'COMPENSATION,

Appellee.

Opinion filed December 5, 2014.

An appeal from the Department of Financial Services.E. Tanner Holloman, Director.

Kristian E. Dunn and Bennett M. Miller of Dickens & Dunn, P.L., Tallahassee, forAppellant.

Alexander R. Brick, Assistant General Counsel, Tallahassee, for Appellee.

MARSTILLER, J.

In April 2013, the Department of Financial Services, Division of Workers'

Compensation ("Department") issued a Stop-Work Order and an Amended Order

of Penalty Assessment against Appellant, Palm Construction Company of West

Florida, for failing to have workers' compensation coverage, as required by chapter

440, Florida Statutes. Appellant sought an evidentiary administrative hearing

pursuant to sections 120.569 and 120.57(1), Florida Statutes, and the Department

referred the matter to the Division of Administrative Hearings ("DOAH"). But in

July 2013, after Appellant failed to timely respond to discovery requests, the

Department filed a Motion to Deem Matters Admitted and to Relinquish

Jurisdiction. The presiding Administrative Law Judge ("ALJ") granted the motion,

relinquished jurisdiction over the matter to the Department and closed the DOAH

file. The same day, but after the ALJ's order issued, Appellant filed with DOAH

an emergency motion to reopen the case, asserting that the Department's discovery

requests now had been fully answered. The ALJ denied the motion, concluding

DOAH no longer had jurisdiction over the case and stating the Department "is the

authority to whom Respondents' motion should be directed." Thereafter, the

Department entered the final order now on appeal, which assesses a $32,983.04

penalty against Appellant.

Seeking reversal of the order, Appellant argues that the ALJ abused her

discretion by failing to consider the merits of, and hold a hearing on, the

emergency motion to reopen the case. We see no basis for finding an abuse of

discretion, however. Appellant concedes it did not timely respond to the

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Department's discovery requests. Thus the factual matters included in the

Department's request for admissions were deemed admitted. See Fla. R. Civ. P.

1.370(a); Fla. Dep't ofFinancial Servs. v. Tampa Serv. Co., Inc., 884 So. 2d 252,

253 (Fla. 1st DCA 2004). Appellant filed no response to the Department's motion

to deem matters admitted. Therefore, in the apparent absence of remaining

disputed factual issues, the ALJ properly relinquished jurisdiction of the case to the

Department. See § 120.57(1)(i), Fla. Stat. Appellant's subsequent emergency

motion was filed in a tribunal without jurisdiction to consider it; there simply was

no authority for an exercise of discretion by the ALJ.

Appellant also raises issues concerning the sufficiency of the allegations in

the Stop-Work Order and Amended Order Imposing Penalty which serve as the

basis for the penalty assessed, the accuracy of the Department's penalty

calculation, and the propriety of the Department's entering the final order without

giving Appellant an opportunity to be heard. Here, too, we find no basis for

reversal. Nothing in the record shows that, after DOAH relinquished jurisdiction

to the Department, Appellant either entreated the Department to return the matter

to DOAH for an evidentiary hearing or requested a non-evidentiary, or informal,

hearing under section 120.57(2), Florida Statutes, to address the issues now raised

on appeal. Consequently, Appellant failed to preserve them for our review. See

Dep't ofBus. & Prof'l Reg. v. Harden, 10 So. 3d 647, 649 (Fla. 1st DCA 2009)

3

("It is well-established that for an issue to be preserved for appeal, it must be raised

in the administrative proceeding of the alleged error.").

AFFIRMED.

BENTON and WETHERELL, JJ., CONCUR.

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