        FIRST DISTRICT COURT OF APPEAL
               STATE OF FLORIDA
                  _____________________________

                          No. 1D17-4750
                  _____________________________

RANDALL BLAKE, JAMES
BRADFORD, ROBERT BUNN, MARK
CARROLL, DONALD CHEATHAM,
KYLE E. DORAN, ROGER EMERY,
ROBERT GHER, LARRY
GOCHNOUR, MARK S. GRAY,
LARRY GREEN, JAMES JACKSON,
GEORGE JARNUTOWSKI, LYNDON
JOHNSON, KEVIN SCOTT LAGOW,
ROY LAWRENCE, THOMAS GARY
LEE, ROBERT LEMAY, MASON
LOGAN, CLYDE LOWE, JAMES T.
MCDANIEL, PENNY MCGUIRE,
BARRY FORM MORGAN, ALYSON
COBB MORGAN, CHARLES
NEWTON, FRANCIS ROBERT
NEYER, BRUCE NICEWANDER,
BEVERLY OAKES, WILLIAM ALAN
PAGE, SHARON PATTERSON,
ROBERT RECKER, JOE ROUSE,
LLOYD SANDERS, MARVIN TOM
SCARBOROUGH, PAUL SMITH,
ROBERT SPITTLER, JERRY
STAPLETON, CAROL STEVENS,
ART WALLACE, WINSTON WAYNE
WALTERS, BARBARA WHITAKER,
and MARK WRIGHT,

   Petitioners,

   v.
ST. JOHNS RIVER POWER PARK
SYSTEM EMPLOYEES’
RETIREMENT PLAN,

    Respondent.
                  _____________________________


Petition for Writ of Certiorari—Original Jurisdiction.


                           July 9, 2019


PER CURIAM.

     Petitioners seek review of an order of the circuit court, which
while sitting as an appellate court exercising certiorari review,
denied Petitioners relief from a local administrative action
impacting their retirement benefits. Constrained by the narrow
standard of review applicable to second-tier certiorari, we deny
the petition.

                  Facts and Procedural History

     Petitioners are retirees who were employed by the St. Johns
River Power Park and are members of the St. Johns River Power
Park Employees’ Retirement Plan (“Respondent” or the “Plan”).
Petitioners retired on various dates over a thirteen-year period
beginning in 2003 and began receiving pension benefits from
Respondent. In 2015, during a required Internal Revenue Service
(“IRS”) review of the Plan, Respondent determined that its
actuaries had miscalculated some retirees’ benefits on an ongoing
basis for thirteen years. Respondent concluded that the
miscalculation resulted in Petitioners’ being paid more benefits
than they were entitled to under the Plan. Upon discovering the
error, Respondent provided a submission (“Corrective Action”) to
the IRS Voluntary Correction Program indicating that it planned
to take corrective action by recouping the overpayments,
including five percent interest, and adjusting Petitioners’ future
benefits accordingly. Through its application to the IRS,

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Respondent requested that the IRS issue a compliance statement
approving its proposed Corrective Action. The IRS approved the
Corrective Action and issued a signed compliance statement.
Respondent then sent letters to Petitioners notifying them of its
error and outlining their options for repaying the overpayment.

     Petitioners requested and received a hearing before the
committee charged with managing and administering the Plan
(the “Committee”) to contest the Corrective Action. Petitioners
argued that Respondent was barred from taking the Corrective
Action under the doctrine of equitable estoppel. Through sworn
affidavits, Petitioners contended that they relied on Respondent’s
representations in deciding to retire on the dates elected, rather
than later dates when they would have received higher benefits.
Counsel representing the Committee’s initial decision to recoup
the overpayments argued that Petitioners were not entitled to
the money and that the IRS requires recoupment in such
circumstances for the Plan to keep its tax-qualified status.

     The Committee issued its final decision denying Petitioners’
appeal and requiring repayment of the overpayments, plus
interest. In rendering its unanimous decision, the Committee’s
order stated that it considered the “affidavits and retirement files
on the part of [Petitioners] and written and oral legal
submissions and argument with regard to [their] position.” The
Committee provided the following reasons for the denial of
Petitioner’s appeal:

         1. [Petitioners] have been overpaid and have
    received benefits not authorized or contemplated by the
    Plan. Accordingly, they must return those benefits.
    There is neither a hardship exception, nor, the
    Committee determined, evidence of such a hardship
    even if there were such an exception for any of the
    Members . . . .

        2.       Plan section 10.15 provides that any
    overpayment due to the Plan’s trust fund shall be
    subject to five (5%) interest.

       3. Plan section 7.06(2) requires all actions of the
    Committee to be uniform and nondiscriminatory, and
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    other Plan participants have been assessed the interest
    charge.

        4.    A failure to follow the governing Plan
    document’s terms would not comply with federal tax
    requirements and therefore would jeopardize the tax-
    qualified status of the Plan, with adverse tax
    consequences to the Plan and to you and all other
    participants.

        5. The Committee has a fiduciary obligation to
    recover amounts due to the Plan’s trust fund, for the
    future payment of pension benefits to all Plan
    participants who are entitled to benefits from the Plan.

     Petitioners thereafter sought review of the Committee’s
decision through a petition for writ of certiorari filed in the circuit
court, arguing that the Committee “failed to address, and
therefore rejected Petitioners’ estoppel arguments” and that the
Committee’s concern about the tax consequences of affording
Petitioners relief was not supported by competent substantial
evidence.

     After briefing and oral argument by the parties, the circuit
court denied certiorari relief, finding that Petitioners were
afforded due process, the Committee observed the essential
requirements of the law, and the Committee’s decision was based
on competent substantial evidence. The court noted that the
express language of the Plan and other record documents such as
the Benefits Notification Summary were sufficient competent
substantial evidence to support the Committee’s decision. 1 The

    1 The court cited the “Notification of Benefits” signed by each
Petitioner, which states in part:

         This calculation is subject to correction. If you are or
    become aware of errors in the data that was used, the
    calculations that were made, or the plan provisions that
    were applied, it is your responsibility to contact the plan
    administrator. The plan has the right to recover from you
    amounts that were paid to you in error. (Emphasis
    added).
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court also found that there was competent substantial evidence
in the record to indicate that “Respondent’s benefit calculations
were only estimates, support a finding that any miscalculation by
Respondent regarding Petitioners’ benefits amounts was not
material, was not detrimentally relied upon by Petitioners, and
was not the cause of a change in Petitioners’ decisions regarding
whether to retire.” The court concluded that equitable estoppel
could not apply to allow Petitioners to obtain greater benefits
than the language of the Plan itself permitted because it would
“jeopardize the Plan’s tax-exempt status, result in additional
costs and penalties to the Plan and its participants, and risk
further non-compliance with the Internal Revenue Code.”
Petitioners now seek review of the circuit court’s ruling.

                            Analysis

      The order being challenged arises from the circuit court’s
certiorari review of a local administrative action. In exercising
first-tier certiorari review, the circuit court is limited to
considering, based on the record before it, “(1) whether
procedural due process is accorded; (2) whether the essential
requirements of law have been observed; and (3) whether the
administrative findings and judgment are supported by
competent substantial evidence.” Haines City Cmty. Dev. v.
Heggs, 658 So. 2d 523, 530 (Fla. 1995). Because the circuit court
functions as an appellate court in such review, it may not
reweigh the evidence or substitute its judgment for that of the
local administrative body. Id.

     As the case proceeds up the judicial ladder, the inquiry
narrows. The district court reviews the circuit court’s judgment
by second-tier certiorari review and may consider only (1)
whether the circuit court afforded procedural due process and (2)
applied the correct law. Id. These two prongs are “merely
expressions of ways in which the circuit court decision may have
departed from the essential requirements of the law.” Id. To
warrant relief, it is not enough for the district court merely to
disagree with the result reached by the circuit court. Dep’t of
Highway Safety & Motor Vehicles v. Morrical, 262 So. 3d 865, 868
(Fla. 5th DCA 2019). Indeed, the supreme court has cautioned
appellate courts “not to expand certiorari jurisdiction to review

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the correctness of the circuit court’s decision.” Futch v. Fla. Dep’t
of Highway Safety & Motor Vehicles, 189 So. 3d 131, 132 (Fla.
2016) (citing Nader v. Dep’t of Highway Safety & Motor Vehicles,
87 So. 3d 712, 723 (Fla. 2012)). Instead, second-tier certiorari
relief is “reserved for those situations when there has been a
violation of a clearly established principle of law resulting in a
miscarriage of justice.” Id. at 132 (quoting Nader, 87 So. 3d at
717).

    In the instant case, Petitioners contend that the circuit court
departed from the essential requirements of law by failing to
conduct an appropriate first-tier certiorari review of the
Committee’s decision. Specifically, they argue that the court
impermissibly made its own factual findings on the elements of
equitable estoppel and reweighed the evidence, rather than
considering whether the Committee’s decision was supported by
competent substantial evidence. 2

     For support, Petitioners cite Broward County v. G.B.V.
International, Ltd., 787 So. 2d 838, 843 (Fla. 2001). In that case,
a developer sought initial certiorari review in the circuit court of
the county commission’s denial of the developer’s application for
plat approval. Id. at 840. The circuit court denied the petition,
reasoning in part that the developer was estopped from raising
its claim because it had misrepresented its position in its
application before the commission. Id. at 841. On second-tier
certiorari review, the district court held that the circuit court
departed from the essential requirements of law because the
circuit court “reached beyond the Commission’s stated reasons
and decided the application on a basis not raised before the


    2   Without providing any supporting argument or legal
authority, Petitioners also make the perfunctory claim that the
circuit court “failed to afford due process of law by refusing to
require that [the Committee] make factual findings regarding
their claims of equitable estoppel.” This argument is waived.
Hammond v. State, 34 So. 3d 58, 59 (Fla. 4th DCA 2010) (“Claims
for which an appellant has not presented any argument, or for
which he provides only conclusory argument, are insufficiently
presented for review and are waived.”).

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County Commissioners. In order to do so, the circuit court relied
on evidence not presented to the Commissioners and thus not
considered by them in denying approval.” G.B.V. Int’l., Ltd. v.
Broward Cty, 709 So. 2d 155, 155 (Fla. 4th DCA 1998). The
district court then proceeded to evaluate the merits of the
commission’s decision and, after concluding that the developer
was entitled to plat approval, remanded to the circuit court for
entry of an order directing the commission to approve the plat as
requested. Id. at 156.

     On review before the Florida Supreme Court, the supreme
court agreed with the district court that the circuit court
departed from the essential requirements of law “by applying the
wrong law” (i.e., instead of applying the first-tier certiorari
standard of review, the court applied an independent standard of
review and “made its own factual finding based on the cold
record”). G.B.V., 787 So. 2d at 845. But the supreme court also
ruled that the district court went too far by ruling on the merits
of the commission’s decision, reasoning that “the district court’s
role on second-tier certiorari review was limited to a two-pronged
review of the circuit court decision, not a de novo review of the
agency decision.” Id. at 845. The supreme court returned the case
to the circuit court with directions for it to apply the three-
pronged standard of review for first-tier certiorari. Id. at 846.

     Mindful of our limited role in reviewing the circuit court
decision before us, we conclude that the court properly applied
the first-tier certiorari standard of review to the Committee’s
decision and thus did not violate the essential requirements of
the law. Unlike the situation in G.B.V., the factual “findings”
challenged by Petitioners are based on the circuit court’s review
of the record for competent substantial evidence presented to the
Committee that supported the Committee’s decision. This is not a
case where the circuit court made factual findings regarding a
theory or argument not put forth before the administrative body.
The court acknowledged in its order that the Committee
considered, and rejected, Petitioners’ arguments, including their
equitable estoppel argument, by pointing to statements in the
Committee’s determination letter that its decision was based on
the stipulated record, including Petitioners’ retirement files,
affidavits, legal arguments, and transcript of the administrative

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hearing. The order also cited language from the Plan, the IRS
statement, and the Benefits Notification Statements, all of which
supported the Committee’s determination that the retirement
benefits calculations were estimates subject to correction and
that the Plan afforded no hardship exception.

     While the circuit court may or may not have agreed with the
Committee’s decision, it was not at liberty to second guess the
decision. See Fla. Dep’t of Highway Safety & Motor Vehicles v.
Wiggins, 151 So. 3d 457, 464 (Fla. 1st DCA 2014) (“The sole
starting (and ending) point is a search of the record for competent
substantial evidence supporting the decision.”); G.B.V., 787 So. 2d
at 846 n.25 (“On first-tier certiorari review, the circuit court’s
task is to review the record for evidence that supports the
agency’s decision, not that rebuts it-for the court cannot reweigh
the evidence.”). That the record contained other evidence, such as
Petitioners’ affidavits, which may have supported a finding of
equitable estoppel is irrelevant. See Clay Cty. v. Kendale Land
Dev., Inc., 969 So. 2d 1177, 1181 (Fla. 1st DCA 2007) (noting that
in certiorari review, “[w]hether the record also contains
competent substantial evidence that would support some other
result is irrelevant”). Had the circuit court relied on that evidence
in the record to rule that equitable estoppel should apply, it
would have been engaging in exactly the type of “reweighing” or
fact-finding that is forbidden on first-tier certiorari review.

     Because Petitioners have not met their heavy burden to
show that the circuit court violated the essential requirements of
the law, the petition is denied.

RAY, C.J., and ROWE and OSTERHAUS, JJ., concur.

                  _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________




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Thomas A. “Tad” Delegal, III, and James C. Poindexter of Delegal
Law Offices, P.A., Jacksonville, for Petitioners

Cindy A. Laquidara and Allison M. Stocker of Akerman LLP,
Jacksonville, for Respondent.




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