         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
                  _____________________________

                          No. 1D17-1759
                  _____________________________

LOZIANE O. MOISE,

    Appellant,

    v.

DISNEY POP CENTURY RESORT,
and WALT DISNEY WORLD CO.
WORKERS’ COMPENSATION
DEPARTMENT,

    Appellees.
                  _____________________________

On appeal from an order of the Judge of Compensation Claims.
Thomas W. Sculco, Judge.

Dates of Accidents: June 9, 2011; January 6, 2013.

                          April 30, 2018

M.K. THOMAS, J.

     In this workers’ compensation case, we address the interplay
between section 440.25(4)(i), Florida Statutes (2011), permitting
motions to dismiss for lack of prosecution, and section 440.19,
Florida Statutes (2011), the statute of limitations (“SOL”)
provision. Appellant (“Moise”) appeals a final order dismissing her
Petitions for Benefits (“PFBs”) as untimely and, therefore, barred
by the SOL. Although we affirm the ultimate disposition reached
by the Judge of Compensation Claims (“JCC”), we write to clarify
application of this Court’s previous decision in Akers v. State of
Florida-Department of Corrections, 987 So. 2d 240 (Fla. 1st DCA
2008).

                                Facts

     Moise, a housekeeper employed by Appellee (“Disney”),
suffered injuries as a result of two compensable accidents at work:
the first occurring on June 9, 2011, and the second on January 6,
2013. Multiple PFBs were filed on her behalf in 2013 and 2014,
asserting both dates of accident and claiming entitlement to
various benefits. At mediations in 2013 and 2015, the claims raised
by the PFBs were resolved with the exception of attorney’s fees and
costs. The parties specifically reserved jurisdiction on those
claims, which remained pending. The last provision of benefits to
Moise for the 2011 date of accident was on April 14, 2014, while
the last provision of benefits for the 2013 injury was on November
22, 2013.

     On August 19, 2016, Disney filed a motion to dismiss the 2013
and 2014 petitions in accordance with section 440.25(4)(i),
asserting a lack of prosecution. On September 1, 2016, after the
filing of the motion and before a hearing, Moise filed two additional
PFBs (covering both dates of accident) seeking additional medical
benefits and attorney’s fees and costs. In response, Disney filed
notices of denial raising SOL defenses pursuant to section 440.19
as to both dates of accident and denying entitlement to all further
benefits. A hearing on Disney’s motion to dismiss resulted in a
dismissal of all pending claims raised by the 2013 and 2014 PFBs.
In the order, the JCC specifically found inadequate record activity
and no “good cause” shown for Moise’s failure to prosecute the
claims. Moise did not appeal the order granting Disney’s motion
to dismiss.

     The PFBs filed by Moise in 2016 were consolidated and the
issues bifurcated to litigate, initially, the viability of Disney’s SOL
defenses. Following the merits hearing, the JCC ultimately
dismissed the 2016 PFBs as untimely, relying solely on Akers.




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                           Legal Analysis

     As to the JCC’s determination that the filing of the 2016 PFB’s
did not toll the SOL, we review this legal conclusion de novo.
McBride v. Pratt & Whitney, 909 So. 2d 386, 387 (Fla. 1st DCA
2005). In support of his ruling, the JCC cited to Akers which
involves similar facts to the instant case. In Akers, the claimant
filed a PFB shortly after the E/C moved to dismiss two prior PFBs
for failure of claimant to prosecute. 987 So. 2d at 241. The JCC
ultimately entered an order granting the motion to dismiss
regarding the previously-filed PFBs. Id. The JCC then dismissed
the PFB (filed after the E/C’s motion to dismiss) as untimely and
barred by the SOL. Id. It was noted in Akers that claimant
stipulated the latter PFB was filed “solely in an effort to avoid an
application of the statute of limitations.” Id. However, this Court’s
affirmance of the dismissal was based on the recognition that the
latter PFB “was filed too late to toll the statute of limitations,”
citing to Chrysler Leasing Corp. v. Passacantilli, 259 So. 2d 1 (Fla.
1972). Id.

     In applying Akers to this case, the JCC found the “same
sequence of events” and that Moise’s 2016 PFBs were filed “in a
similar attempt to toll the statute of limitations before Disney’s
motion to dismiss for lack of prosecution could be determined.”
Accordingly, the JCC seemingly focused upon Moise’s intent in the
filing of the 2016 PFBs.

     For clarification, Akers should not be misconstrued to require
a JCC to determine the intentions for or the merits of a PFB filed
subsequent to a motion to dismiss under section 440.25(4)(i). The
motivating factor(s) to file a PFB is not pertinent to the analysis of
timeliness under section 440.19. The date of filing of a PFB, which
meets the specificity requirements of section 440.192, Florida
Statutes, is the determining factor. Neither the claimant’s basis
for filing nor the merits of the claims raised in the PFB are
relevant to whether its filing was timely pursuant to section
440.19.

    Disney argues that, instead of Akers, this case is controlled by
Limith v. Lenox on Lake, 163 So. 3d 616 (Fla. 1st DCA 2015). In
Limith, the JCC denied a motion to dismiss a pending attorney’s
fee claim for lack of prosecution, which tolled the statute of
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limitations. Id. at 617. After issuance of the order denying the
E/C’s motion to dismiss, Limith filed a new PFB for a follow-up
medical visit, which the E/C claimed was barred by the SOL. Id.
The JCC both rejected the E/C’s defense and denied the new PFB
on its merits. Id. Limith appealed the denial of the medical claim,
and the E/C cross-appealed both the ruling on their SOL defense
and the interlocutory order denying the motion to dismiss the prior
fee claim for lack of prosecution. Id. 1 In Limith, this Court
reasoned:

    Although section 440.25(4)(i) states that a JCC “may”
    dismiss a petition for lack of prosecution, that decision is
    not necessarily discretionary. See Allied Fid. Ins. Co. v.
    State, 415 So. 2d 109, 111 (Fla. 3d DCA 1982) (“[T]he
    permissive word “may” will be deemed to be obligatory
    ‘[w]here a statute directs the doing of a thing for the sake
    of justice....’”). The word “may” must also be considered in
    context with the rest of section 440.25(4)(i) referencing
    “good cause shown”; specifically, section 440.25(4)(i)
    provides a JCC may dismiss a PFB “unless good cause is
    shown.” Because the Legislature provided a standard of
    “good cause shown,” it was incumbent upon the JCC here,
    in the exercise of sound judicial discretion, to apply the
    standard. But the JCC failed to provide any rationale
    whatsoever for denying the motion to dismiss. This court
    has previously held that a failure to exercise discretion
    constitutes reversible error. See VFD v. State, 19 So. 3d
    1172 (Fla. 1st DCA 2009). Because the failure to exercise
    discretion here results in the potential indefinite tolling of
    the statute of limitations, the order denying the E/C's
    motion to dismiss was erroneous.

163 So. 3d at 617-18.

    The 2016 PFBs in this case were filed before the motion to
dismiss the prior claims had been acted upon by the JCC. The

    1 Contrary to the facts in Limith, Moise did not appeal the
JCC’s Order granting Disney’s motion to dismiss for lack of
prosecution.

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parties agree the limitations period would have expired before the
2016 PFBs were filed (the record suggests that all limitations
periods would have expired by approximately November 2015), if
not for the pending fee claims against which the motion to dismiss
had been filed. Regardless, we agree with Disney that the
reasoning of Limith also applies here. Once the JCC granted the
motion to dismiss (which extinguished the pending claims) and
that ruling became final, the 2016 PFBs were retroactively barred
by operation of the SOL. See Limith, 163 So. 3d at 618.

     Here, Moise argues that because the 2016 PFBs were filed
before the prior PFBs were dismissed, there existed pending PFBs
at all times, thus tolling the SOL. We cannot agree. When a
pending claim which serves to toll the SOL is dismissed by any
means, ‘“the statute of limitations is not tolled during the period
that the dismissed action was pending; rather, the statute will run
as if the dismissed action had never been filed.’” Sanchez v. Am.
Airlines, 169 So. 3d 1197, 1197 (Fla. 1st DCA 2015) (quoting
McBride, 909 So. 2d at 388). Otherwise, “a party could avoid
dismissal in every case by acting after the motion was made,
whether or not he had prosecuted the action during the previous
year, or could show good cause for his failure to do so,” which would
eviscerate the statute “by eliminating its penalty aspect.”
Passacantilli, 259 So. 2d at 4. 2



    2 We recognize Passacantilli was a civil matter and the motion
to dismiss for lack of prosecution was brought pursuant to Rule
1.420(e), Florida Rules of Civil Procedure (1971). Chrysler Leasing
Corp. v. Passacantilli, 259 So. 2d 1 (Fla. 1972). However, this Court
has historically recognized the similarity of purpose between Rule
11(b), Florida Workers’ Compensation Rules of Procedure
(allowing motions to dismiss for lack of prosecution and later
codified in section 440.25(4)(i), Florida Statutes) and Rule 1.420(e).
See Kinsey v. Skyline Corp., 395 So. 2d 626 (Fla. 1st DCA 1981).
In 2012, Rule 60Q-6.124, Rules of Procedure for Workers’
Compensation Adjudications, was amended to establish an
additional vehicle to dispose of unresolved claims for attorney’s fee
and cost entitlement which remain pending. Rule 60Q-6.124(4),
allows a motion “by any party” to initiate resolution of disputed
attorney’s fees and costs. The common thread of these statutory
                                  5
     As illustrated by the facts of this case, the interaction of
sections 440.19 and 440.25(4)(i) can prompt a “race to the
courthouse” when a pending claim originally brought by PFB
(whether for attorney’s fees and costs or otherwise) acts to toll the
statute of limitations and no record activity has occurred for over
a year. However, any burden resulting from the one-year window
imposed by section 440.25(4)(i) is generally avoidable, given that
dismissal for lack of prosecution is possible only where there has
been no record activity 3 and there exists no good cause for the lack
of activity – a contingency within the claimant’s control. See Bocelli
v. Sw Fla. Inv., 37 So. 3d 964 (Fla. 1st DCA 2010) (Wetherell, J.,
specially concurring); Airey v. Wal-Mart/Sedgwick, 24 So. 3d 1264,
1265 (Fla. 1st DCA 2009).

   For the foregoing reasons, we affirm the dismissal of the 2016
PFBs as untimely and, therefore, barred by section 440.19.

    AFFIRMED.

B.L. THOMAS, C.J., and RAY, J., concur.
                _____________________________

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

Nicolette E. Tsambis of Smith, Feddeler, Smith, P.A., Lakeland,
for Appellant.

provisions and rules of procedure is to promote efficient and timely
resolution of pending litigation. Of note, in 2006, Rule 1.420(e) was
amended to allow a 60-day grace period to cure record inactivity
after service of the required notice of intent to file a motion to
dismiss for lack of prosecution. However, the Legislature did not
include a similar notice requirement or grace period in section
440.25(4)(i), its workers’ compensation counterpart.
    3 Pursuant to section 440.25(4)(i), the filing of a “petition,
response, motion, order, request for hearing, or notice of
deposition” constitutes record activity.

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William H. Rogner of Hurley, Rogner, Miller, Cox, & Waranch,
P.A., Winter Park, for Appellees.




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