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

STATE OF FLORIDA, AGENCY              NOT FINAL UNTIL TIME EXPIRES TO
FOR HEALTH CARE                       FILE MOTION FOR REHEARING AND
ADMINISTRATION,                       DISPOSITION THEREOF IF FILED

      Petitioner,                     CASE NO. 1D16-3317

v.

PLANNED PARENTHOOD OF
SOUTHWEST AND CENTRAL
FLORIDA, INC.,

     Respondent.
___________________________/

Opinion filed January 19, 2017.

Petition for Review of Non-Final Agency Action.
Lawrence P. Stevenson, Judge.

Segundo J. Fernandez and Timothy P. Atkinson of Oertel, Fernandez, Bryant &
Atkinson, P.A., Tallahassee, for Petitioner.

Julie Gallagher of Grossman, Furlow & Bayó, LLC, Tallahassee, for Respondent.




B.L. THOMAS, J.

      Petitioner seeks review of a non-final agency action, where the Administrative

Law Judge ordered an evidentiary hearing on the issue of Respondent’s motion to

impose sanctions in the form of attorneys’ fees. Our scope of review for non-final
agency action is “‘analogous to, and no broader than the right of review by common

law certiorari.’” State v. Murciano, 163 So. 3d 662, 664 (Fla. 1st DCA 2015) (quoting

CNL Resort Hotel, L.P. v. City of Doral, 991 So. 2d 417, 420 (Fla. 3d DCA 2008)).

The issue before this court is whether the challenged ruling “‘departed from the

essential requirements of the law, thereby causing irreparable injury which cannot be

adequately remedied on appeal following final judgment.’” Id. at 665 (quoting Belair

v. Drew, 770 So. 2d 1164, 1166 (Fla. 2000)). We hold that it did.

      In the underlying case, Petitioner filed three administrative complaints against

Respondent alleging violations of Respondent’s license to perform abortions.

Respondent filed motions to dismiss Petitioner’s amended complaints, but did not raise

the issue of attorneys’ fees or sanctions. After the motions to dismiss were denied,

however, Petitioner voluntarily dismissed the complaints.

      After Petitioner voluntarily dismissed the case, Respondent filed a motion

requesting attorneys’ fees under the administrative fee-shifting statute, section

120.595(1), Florida Statutes (2016). An order to show cause was issued directing

Respondent to explain why the motion should not be denied, as Petitioner did not meet

the statutory definition of a non-prevailing party under Johnson v. Department of

Corrections, 191 So. 3d 965, 968 (Fla. 1st DCA 2016). Respondent then amended its

request for attorneys’ fees, conceding it could not prevail under section 120.595(1),

and claimed entitlement under a different theory, section 120.569(2)(e), Florida


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Statutes (2016), which provides for an award of fees as a sanction for any “pleadings,

motions, or other papers filed [for an] improper purposes, such as to harass or to cause

unnecessary delay, or for a frivolous purpose or needless increase in the cost of

litigation.” The administrative law judge subsequently entered an order setting an

evidentiary hearing to decide whether sanctions should be imposed.

      In deciding whether to grant review of a non-final agency action, showing

irreparable injury is a jurisdictional hurdle that we address “before determining

whether the [ruling] departed from the essential requirements of law.” AVCO Corp. v.

Neff, 30 So. 3d 597, 601 (Fla. 1st DCA 2010). Because Petitioner’s filing of the notice

of voluntary dismissal divested the administrative law judge of jurisdiction to entertain

either of Respondent’s motions for fees or sanctions, this case should have been closed

before Respondent filed its original motion asserting an entitlement to attorneys’ fees.

Pino v. Bank of N.Y., 121 So. 3d 23, 32 (Fla. 2013) (recognizing that voluntary

dismissal “serves to terminate the litigation, to instantaneously divest the court of its

jurisdiction to enter or entertain further orders”). Accordingly, we hold that the order

setting this matter for an evidentiary hearing would cause irreparable harm, because it

would lead to the disclosure of irrelevant information. See Spry v. Prof’l Emp’r Plans,

985 So. 2d 1187, 1188 (Fla. 1st DCA 2008) (holding that compliance with discovery

order to disclose petitioner’s wholly irrelevant financial information in a workers’

compensation claim would cause irreparable harm); cf. Bank of Am., N.A. v.


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Turkanovic, 2016 WL 7032965 (1st DCA Dec. 1, 2016) (granting writ of prohibition

and quashing trial court’s order compelling deposition of bank’s corporate

representative “in furtherance of [r]espondent’s motion seeking an award of attorney's

fees as a sanction,” where the bank voluntarily dismissed a foreclosure complaint

within the safe harbor provision of section 57.105(4), Florida Statutes). This court

reasoned in Turkanovic that because the case was voluntarily dismissed before the

homeowner filed the motion for sanctions, the trial court lacked jurisdiction to order

further discovery. Here, because Petitioner would suffer a similar irreparable injury by

preparing for an evidentiary hearing in a case that should have been closed and

jurisdiction relinquished, we have jurisdiction to review the petition.

      Appellate courts have broad discretion in determining whether an error rose to

the level of an essential departure from the law. “Since it is impossible to list all

possible legal errors serious enough to constitute a departure from the essential

requirements of law, the district courts must be allowed a large degree of discretion so

that they may judge each case individually.” Williams v. Oken, 62 So. 3d 1129, 1133

(Fla. 2011).

      The order purporting to exercise jurisdiction to entertain either of Respondent’s

motions for fees or sanctions and setting Respondent’s amended motion for an

evidentiary hearing, after the litigation was terminated by the voluntary dismissal,

departed from the essential requirements of the law. Cf. Town of Davie v. Santana, 98


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So. 3d 262 (Fla. 1st DCA 2012) (holding that administrative law judge lacked

jurisdiction to reopen case to impose attorneys’ fees under section 120.595(1), when it

closed the case once the petition was dismissed and no motion for attorneys’ fees was

pending).

      Thus, we GRANT review of this non-final agency action and QUASH the order

below for an evidentiary hearing.

WETHERELL and M.K. THOMAS, JJ., CONCUR.




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