O'Donnell's Corporation v. Ambroise, Case No. 5D03-324 (Fla. App. 5th Dist. 11/7/2003)
| Decision Date | 07 November 2003 |
| Docket Number | Case No. 5D03-324. |
| Citation | 858 So.2d 1138 |
| Parties | O'DONNELL'S CORPORATION, Appellant, v. HIMROD AMBROISE, Appellee. |
| Court | Florida District Court of Appeals |
Administrative Appeal from the Department of Agriculture and Consumer Services.
Christopher C. Cathcart of Ossinsky & Cathcart, P.A., Winter Park, for Appellant.
No Appearance for Appellee.
This is an appeal of an "Order Remanding Petition for Relief from an Unlawful Employment Practice." We conclude it is not an appealable order.
Section 120.68(1), Florida Statutes, states:
A party who is adversely affected by final agency action is entitled to judicial review. A preliminary, procedural, or intermediate order of the agency or of an administrative law judge of the Division of Administrative Hearings is immediately reviewable if review of the final agency decision would not provide an adequate remedy.
Final agency action is that which brings the administrative adjudicatory process to a close. Hill v. Div. of Ret., 687 So. 2d 1376 (Fla. 1st DCA 1997). "`The test to determine whether an order is final or interlocutory in nature is whether the case is disposed of by the order . . . .'" Id., quoting Prime Orlando Props., Inc. v. Dept. of Bus. Regulation, etc., 502 So. 2d 456, 459 (Fla. 1st DCA 1986). Because the order on appeal simply remands the petition back to the administrative law judge for further proceedings (i.e., a formal hearing), it is not a final order. Furthermore, O'Donnell's has not established the alternative ground for review under section 120.68. Review of the final agency action would provide an adequate remedy. Consequently, we do not have jurisdiction to review it under section 120.681 and Florida Rule of Appellate Procedure 9.110.
APPEAL DISMISSED.
1. We considered the possibility of treating this appeal as a petition for writ of prohibition. See, e.g., Dept. of Health and Rehab. Servs. v. Career Serv. Com'n, 448 So. 2d 18 (Fla. 1st DCA 1984) (). However, prior opinions uniformly hold that the untimely filing of a request for an administrative hearing is not a jurisdictional defect. Machules v. Dep't of Admin., 523 So. 2d 1132 (Fla.1988); Appel v. Fla. Dep't of State, Div. of Licensing, 734 So. 2d 1180 (Fla. 2d DCA 1999).
SAWAYA, C.J., concurring and concurring specially.
I fully concur in the majority opinion. I write to respond to the assertion in the dissent that prohibition is an appropriate remedy in this case. The order under review remands the case to the administrative law judge (ALJ) to conduct a hearing and is thus a non-final order. Because the order does not fit within any of the categories of appealable non-final orders listed in rule 9.130(a)(3), Florida Rules of Appellate Procedure, this court does not have jurisdiction to review it. In order to avoid this jurisdictional bar, the dissent argues that the notice of appeal should be treated as a petition for a writ of prohibition. This raises the issue of whether it is appropriate to issue a writ of prohibition in these proceedings. In my view it is not and, therefore, I agree with the majority that the appropriate disposition here is to dismiss this appeal for lack of jurisdiction.
The historical underpinnings of the extraordinary remedy of prohibition help define its present contours. Emanating from rather early decisions of the English courts, the remedy of prohibition was conceived as a way to prevent encroachments on the authority and jurisdiction of the kings' courts by other courts, i.e., ecclesiastical courts, during a time of conflict between church and state. Hence it was intended to be applied as a preventative rather than a remedial measure.
American courts accepted the remedy of prohibition as an integral part of the common law, as developed by the English common law courts, and the remedy became firmly ingrained in American jurisprudence. Staying true to the historical development of the remedy, the Florida courts have consistently held that "[t]he writ is very narrow in scope and operation and must be employed with caution and utilized only in emergency cases to prevent an impending injury where there is no other appropriate and adequate legal remedy." Mandico v. Taos Constr., Inc., 605 So. 2d 850, 854 (Fla. 1992). Thus, prohibition is the appropriate remedy to prevent an inferior tribunal from acting in excess of jurisdiction but not to prevent an erroneous exercise of jurisdiction. Mandico; English v. McCrary, 348 So. 2d 293 (Fla. 1977). Because prohibition is preventative, it may not be used to revoke an order already entered. English; State ex rel. Harris v. McCauley, 297 So. 2d 825 (Fla. 1974); State ex rel. R.C. Motor Lines, Inc. v. Boyd, 114 So. 2d 169 (Fla.1959); Department of Children & Family Servs. v. Interest of J.C., 847 So. 2d 487, 491-92 (Fla. 3d DCA 2002); Larcher v. Department of Highway Safety & Motor Vehicles, 736 So. 2d 1249 (Fla. 5th DCA 1999); Morse v. Moxley, 691 So. 2d 504 (Fla. 5th DCA 1997). Prohibition is also inappropriate if the parties have the right to remedy the wrong by direct appeal. English; Broward County v. Florida Nat'l Props., 613 So. 2d 587 (Fla. 4th DCA 1993); Bondurant v. Geeker, 499 So. 2d 909 (Fla.1st DCA 1986). Application of these general principles makes it abundantly clear that prohibition is not an appropriate remedy in the instant case.
The dissent concludes that issuance of the writ is appropriate because section 120.569(2)(c), Florida Statutes (2002), provides that "[a] petition shall be dismissed if . . . it has been untimely filed." The dissent reasons that excusable neglect is not an exception to the dismissal requirement and that the Commission erred in remanding the case to the ALJ on that basis. The dissent also reasons that it is not necessary to determine whether the doctrine of equitable tolling is applicable because the requirements for that doctrine are not met in the instant case. However, even assuming that excusable neglect has been eliminated as an exception to the dismissal requirement of the statute, equitable tolling remains as a viable exception. See Machules v. Department of Admin., 523 So. 2d 1132 (Fla 1988); Whiting v. Florida Dep't of Law Enforcement, 849 So. 2d 1149 (Fla. 5th DCA 2003); see also Cann v. Department of Children & Family Servs., 813 So. 2d 237 (Fla. 2d DCA 2002). Application of equitable tolling as an exception to the dismissal requirement of section 120.569(2)(c) clearly indicates that the provisions of the statute are not jurisdictional.
This court, in Whiting, provided another clear indication that the dismissal requirement of the statute is not jurisdictional when we held that "[l]ate filing is presumed to constitute a waiver of rights." 849 So. 2d at 1151 (citing Appel v. Florida Dep't of State, Div. of Licensing, 734 So. 2d 1180 (Fla. 2d DCA 1999)). In Appel, the court held that the petitioner "is entitled to rebut that presumption at an evidentiary hearing." 734 So. 2d at 1182 (citation omitted). If late filing is jurisdictional under section 120.569(2)(c), there would be no presumption of waiver and Florida courts would not have jurisdiction to determine whether the presumption had been rebutted.
Moreover, the courts have consistently held that late filing of a request for an administrative hearing is not jurisdictional, but is analogous to a statute of limitations which is subject to equitable exceptions. Machules; Appel; Abusalameh v. Department of Bus. Regulation, Div. of Alcoholic Beverages & Tobacco, 627 So. 2d 560 (Fla. 4th DCA 1993); Castillo v. Department of Admin., Div. of Ret., 593 So. 2d 1116 (Fla. 2d DCA 1992); Stewart v. Department of Corr., 561 So. 2d 15 (Fla. 4th DCA 1990). Prohibition is inappropriate to review an order determining the time limitations under a statute of limitations. In Panagakos v. Laufer, 779 So. 2d 296 (Fla. 2d DCA 1999), the court held:
This court lacks jurisdiction to review the denial of a motion to dismiss based on a statute of limitations defense by either a writ of certiorari, see Whiteside v. Johnson, 351 So. 2d 759 (Fla. 2d DCA 1977), or a writ of prohibition. This court has no authority through a writ of prohibition to review a trial court's denial of a defendant's motion to dismiss based on the defendant's affirmative defense of statute of limitations. Prohibition is an extraordinary writ that is extremely narrow in scope and operation. It exists to prevent "an inferior tribunal from acting in excess of jurisdiction but not to prevent an erroneous exercise of jurisdiction." English v. McCrary, 348 So. 2d 293, 297 (Fla.1977). When a trial court makes an erroneous ruling on a statute of limitations defense, that error, like any other error concerning an affirmative defense, can be corrected on appeal from a final order. Cf. Mandico v. Taos Constr., 605 So. 2d 850 (Fla.1992) (). Although this court in Swartzman v. Harlan, 535 So. 2d 605 (Fla. 2d DCA 1988), issued a writ of prohibition because an action was barred by the statute of limitations, that opinion does not specifically address the appropriateness of prohibition. Nonetheless, to the extent that it suggests that prohibition is the appropriate remedy, we believe that the reasoning of the supreme court in Mandico requires a contrary conclusion.
The decision in Bondurant is also analogous. There, the court refused to issue a writ of prohibition to review an order denying a motion to dismiss based on the statute of limitations. The court held that it would not review an interlocutory order through the issuance of a writ of prohibition because the petitioner had...
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