v. Limith, No. 1D13–5357.

CourtCourt of Appeal of Florida (US)
Writing for the CourtPER CURIAM.
PartiesF.T.M.I. OPERATOR, LLC, and United States Fire Insurance Co., Petitioners, v. Anne Marie LIMITH, Respondent.
Docket NumberNo. 1D13–5357.
Decision Date09 June 2014

140 So.3d 1065

F.T.M.I. OPERATOR, LLC, and United States Fire Insurance Co., Petitioners,
v.
Anne Marie LIMITH, Respondent.

No. 1D13–5357.

District Court of Appeal of Florida,
First District.

June 9, 2014.


[140 So.3d 1066]


William H. Rogner and Andrew R. Borah of Hurley, Rogner, Miller, Cox, Waranch & Westcott, P.A., Winter Park, for Petitioners.

Bill McCabe, Longwood, for Respondent.


PER CURIAM.

The Employer/Carrier (E/C) in this workers' compensation case filed a petition for writ of certiorari to review a non-final order of the Judge of Compensation Claims (JCC) denying its motion to dismiss for lack of prosecution under section 440.25(4)(i), Florida Statutes (2011). The motion followed the E/C's unsuccessful motion to compel Claimant to file a verified motion for attorney's fees under Florida Administrative Code Rule 60Q–6.124(4) and was filed one day after the statute of limitations would have run in this matter but for the JCC's reservation of jurisdiction over a claim for attorney's fees asserted in a petition for benefits (PFB) that was otherwise resolved in January 2012.

The E/C argues that it is irreparably harmed because the denial of its motion to dismiss the pending claim for attorney's fees and costs has “forever stripped” its right to assert the statute of limitations. See Black v. Tomoka State Park, 106 So.3d 973 (Fla. 1st DCA 2013) (reaffirming rule set forth in Longley v. Miami–Dade Cnty. Sch. Bd., 82 So.3d 1098 (Fla. 1st DCA 2012), that pending claims asserted via PFB for attorney's fees and costs toll statute of limitations). The E/C, however, failed to present any compelling authority indicating it cannot raise and maintain a statute of limitations defense for all benefits that Claimant might later claim (including the at-issue claim for attorney's fees) based on its position that the JCC erred in denying the motion to dismiss. In fact, precedent from this court would indicate otherwise.*See Orange Cnty. Sch. Bd. v. Perkins, 619 So.2d 1, 2 n. 1 (Fla. 1st DCA 1993) (explaining appellate

[140 So.3d 1067]

court denied e/c's petition for writ of certiorari challenging JCC's order denying motion to dismiss claim for lack of prosecution, and that e/c “again raised the issue of failure to prosecute at the merits hearing” after which, appellate court addressed merits of order denying motion to dismiss).

Because the order denying the E/C's motion to dismiss for lack of prosecution can be reviewed on subsequent plenary appeal, the E/C...

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6 practice notes
  • Poggi v. Fla. Fish & Wildlife Conservation Comm'n, 1D21-2034
    • United States
    • Court of Appeal of Florida (US)
    • April 13, 2022
    ...argued that review after final agency action is entered would leave him with an inadequate remedy. Cf., F.T.M.I. Operator, LLC v. Limith, 140 So.3d 1065, 1067 (Fla. 1st DCA 2014) (dismissing certiorari review for lack of the requisite "irreparable harm" where the argument could be reviewed ......
  • Poggi v. Fla. Fish & Wildlife Conservation Comm'n, 1D21-2034
    • United States
    • Court of Appeal of Florida (US)
    • April 13, 2022
    ...that review after final agency action is entered would leave him with an inadequate remedy. Cf. , F.T.M.I. Operator, LLC v. Limith , 140 So. 3d 1065, 1067 (Fla. 1st DCA 2014) (dismissing certiorari review for lack of the requisite "irreparable harm" where the argument could be reviewed post......
  • Holl v. United Parcel Serv. & Liberty Mut. Ins., No. 1D13–2745.
    • United States
    • Court of Appeal of Florida (US)
    • June 9, 2014
    ...440.15. See Scalia & Garner, 156 (“In the following passage [illustrated], ... the if-clause in subpart (C) relates only to (C).”). [140 So.3d 1065]Further, in applying the “Title–and–Headings Canon,” the headings of both subsection 440.15(3) (“Permanent impairment and wage-loss benefits”) ......
  • R & S Excavation, Inc. v. Eddleman, CASE NO. 1D16–3951
    • United States
    • Court of Appeal of Florida (US)
    • March 31, 2017
    ...appeal, the petition for writ of certiorari is dismissed for lack of jurisdiction. See213 So.3d 1127F.T.M.I. Operator, LLC v. Limith , 140 So.3d 1065, 1066 (Fla. 1st DCA 2014).B.L. THOMAS, OSTERHAUS, and BILBREY, JJ.,...
  • Request a trial to view additional results
6 cases
  • Poggi v. Fla. Fish & Wildlife Conservation Comm'n, 1D21-2034
    • United States
    • Court of Appeal of Florida (US)
    • April 13, 2022
    ...argued that review after final agency action is entered would leave him with an inadequate remedy. Cf., F.T.M.I. Operator, LLC v. Limith, 140 So.3d 1065, 1067 (Fla. 1st DCA 2014) (dismissing certiorari review for lack of the requisite "irreparable harm" where the argument could be reviewed ......
  • Poggi v. Fla. Fish & Wildlife Conservation Comm'n, 1D21-2034
    • United States
    • Court of Appeal of Florida (US)
    • April 13, 2022
    ...that review after final agency action is entered would leave him with an inadequate remedy. Cf. , F.T.M.I. Operator, LLC v. Limith , 140 So. 3d 1065, 1067 (Fla. 1st DCA 2014) (dismissing certiorari review for lack of the requisite "irreparable harm" where the argument could be reviewed post......
  • Holl v. United Parcel Serv. & Liberty Mut. Ins., No. 1D13–2745.
    • United States
    • Court of Appeal of Florida (US)
    • June 9, 2014
    ...440.15. See Scalia & Garner, 156 (“In the following passage [illustrated], ... the if-clause in subpart (C) relates only to (C).”). [140 So.3d 1065]Further, in applying the “Title–and–Headings Canon,” the headings of both subsection 440.15(3) (“Permanent impairment and wage-loss benefits”) ......
  • R & S Excavation, Inc. v. Eddleman, CASE NO. 1D16–3951
    • United States
    • Court of Appeal of Florida (US)
    • March 31, 2017
    ...appeal, the petition for writ of certiorari is dismissed for lack of jurisdiction. See213 So.3d 1127F.T.M.I. Operator, LLC v. Limith , 140 So.3d 1065, 1066 (Fla. 1st DCA 2014).B.L. THOMAS, OSTERHAUS, and BILBREY, JJ.,...
  • Request a trial to view additional results

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