                                      IN THE DISTRICT COURT OF APPEAL
                                      FIRST DISTRICT, STATE OF FLORIDA

VICTOR SOCA,                          NOT FINAL UNTIL TIME EXPIRES TO
                                      FILE MOTION FOR REHEARING AND
      Appellant,                      DISPOSITION THEREOF IF FILED

v.                                    CASE NO. 1D15-795

ADVANCED AUTO PARTS
AND SEDGWICK CLAIMS
SERVICES, INC.,

      Appellees.


_____________________________/

Opinion filed February 23, 2016.

An appeal from an order of the Judge of Compensation Claims.
Charles M. Hill, III, Judge.

Date of Accident: April 24, 2010.

Bram J. Gechtman of the Law Offices of Bram J. Gechtman, PA., Miami, for
Appellant.

Christopher A. Thorne of Thorne & Associates, Orlando, for Appellees.



PER CURIAM.

      In this workers’ compensation case, Claimant appeals an order of the Judge

of Compensation Claims (JCC) denying his motion for sanctions as premature. For

the reasons below, we reverse the order.
      Claimant sustained compensable injuries from gunshot wounds he suffered

during a robbery of his Employer. He filed three petitions for benefits (PFBs) but

withdrew them when the Employer/Carrier (E/C) promptly provided the requested

benefits. The E/C, believing it was the “prevailing party” as to the claims, moved to

tax costs against Claimant. See § 440.34(3), Fla. Stat. (2009). Claimant, believing

that the four costs itemized in that motion could not have been incurred to defend

against the claims in the PFB, served a motion for sanctions on the E/C.

      The motion for sanctions was made under authority of section 440.32, Florida

Statutes (2009), which permits taxation of costs against a party who has instituted or

continued proceedings without reasonable ground, and against an attorney who has

maintained or continued proceedings frivolously. The motion was made in

accordance with the procedural rule implementing that statute, Florida

Administrative Code Rule 60Q-6.125(4)(a), which provides that motions for

sanctions in workers’ compensation proceedings “shall be served but shall not be

filed unless the challenged paper, claim, defense, allegation, or denial is not

withdrawn or appropriately corrected within 21 days after service of the motion.”

      More than 21 days passed after Claimant’s service of the sanctions motion,

and the E/C did not withdraw its costs motion. Claimant then filed his sanctions

motion with the JCC. One week later, the E/C withdrew its costs motion, asserting

that it was doing so without prejudice to refile. The sanctions motion proceeded to

                                          2
hearing, where the E/C argued it had withdrawn the costs motion only for its lack of

compliance with a new procedural rule – not because the motion was frivolous. The

JCC reasoned that, to determine whether the costs motion was baseless, he had to

determine which party had prevailed and whether the costs were reasonable. The

JCC then concluded that, because the costs motion was no longer pending, he could

not make those determinations, and therefore the sanctions motion was “premature.”

      By the JCC’s reasoning, the sanctions motion cannot be heard now because

the costs motion on which it was based was withdrawn before the JCC had a chance

to hear the sanctions motion. Further, by the JCC’s reasoning, the sanctions motion

can never be heard unless the costs motion is refiled. The JCC’s reasoning reveals

that his true ruling here was a dismissal with prejudice, for lack of jurisdiction.

Accordingly, this order is reviewable as a nonfinal order adjudicating

jurisdiction. See Fla. R. App. P. 9.180(b)(1)(A).

      The JCC erred in ruling that he lacked jurisdiction to make the findings needed

to reach the merits of the sanctions motion. The sanctions motion became “mature”

once the E/C failed to withdraw the costs motion within the 21-day safe harbor

period provided by rule 60Q-6.125(4)(a), and upon the filing of the sanctions motion

the JCC had jurisdiction to make findings about the merits of the costs motion

(although not, given the withdrawal of the costs motion, to award or deny costs).

Therefore, the JCC had jurisdiction to rule on the sanctions motion. To conclude

                                          3
otherwise would render the safe-harbor provision meaningless and section 440.32

toothless.

      The JCC added a second ground for denying the sanctions motion: Claimant

had not shown the costs motion to have been lodged “in bad faith for unreasonable

purposes.” But that second finding implies that the JCC thought Claimant could

make such a showing were the sanctions motion to be refiled when “mature” – an

implication that reinforces our conclusion that the JCC’s denial of sanctions was

actually a dismissal of the motion, based entirely on jurisdictional grounds.

      As a separate point on appeal, Claimant challenges the JCC’s observations

that Claimant had not demonstrated bad faith and that the voluntary dismissals of

the PFB “provided a colorable presumption . . . that the E/C was the prevailing

party.” On this point we note only that on remand the JCC is to apply the proper

legal test for sanctions, which is whether the offending party “willfully disregarded

the JCC’s authority,” Lincoln Assoc. & Constr., Inc. v. Wentworth Constr. Co., 38

So. 3d 155, 156 (Fla. 1st DCA 2010), or whether the cost proceedings were

“maintained or continued frivolously” or whether the motion to tax costs was “well

grounded in fact and . . . warranted by existing law or a good faith argument” for

modification or extension of existing law, § 440.32, Fla. Stat. (2009).

      REVERSED and REMANDED for further proceedings.

ROBERTS, C.J., WOLF and THOMAS, JJ., CONCUR.

                                          4
