ESTERVE LOUIS, APPELLANT,
v.
HOOTERS OF WEST PALM BEACH/UNITED SELF INSURED SERVICES, APPELLEES
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In this workers' compensation appeal, the court affirmed the trial court's dismissal of a claimant's 2008 petition for benefits on statute of limitations grounds. The claimant had filed a 2007 petition, then filed a Notice of Resolution of Issues suggesting settlement, and later filed a second petition in 2008 that was deemed time-barred.
The court affirmed the trial court's grant of the employer/carrier's motion, finding that the Notice of Resolution of Issues effectively operated as a voluntary dismissal of the 2007 PFB and that the statute of limitations had expired before the 2008 PFB was filed. The claimant failed to preserve the issue for appeal by not raising it with the trial court after the dismissal order.
[1] A notice of resolution of issues, filed by a claimant who subsequently requests cancellation of a final hearing, may be construed as a voluntary dismissal of a petition f…
[2] A claimant's failure to raise an issue with the judge of compensation claims following an order dismissing a petition for benefits waives the opportunity to have that iss…
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Join FLexlaw to unlock all legal intelligence“Pursuant to Rule 9.315, Florida Rules of Appellate Procedure (2008), we find the Claimant failed to demonstrate a preliminary basis for reversal and summarily affirm the JCC's order denying Claimant's motion for a final merits hearing on his 2007 petition for benefits (PFB).”
The court's basis for summarily affirming without full appellate review.
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Join FLexlaw to unlock all legal intelligenceIn 2007, Claimant Esterve Louis filed a petition for benefits (PFB) against his employer/carrier seeking compensation. Shortly after, he filed a Notic…
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Pursuant to Rule 9.315, Florida Rules of Appellate Procedure (2008), we find the Claimant failed to demonstrate a preliminary basis for reversal and summarily affirm the JCC’s order denying Claimant’s motion for a final merits hearing on his 2007 petition for benefits (PFB). Fla. RApp. P. 9.315 (2008).
In 2007, the Claimant filed a PFB requesting various compensation benefits from the Employer/Carrier (E/C). Shortly thereafter, the Claimant filed a “Notice of Resolution of Issues,” advising the JCC that the parties had resolved the claim and requesting that the JCC cancel a previously scheduled final hearing. The JCC canceled the final hearing and no further action was taken regarding the 2007 PFB.
In 2008, Claimant filed a second PFB renewing the request for benefits made in the 2007 PFB. The E/C responded by filing a “Motion For Summary Final Order,” alleging (1) Claimant’s Notice of Resolution of Issues acted as a dismissal of the *7022007 PFB, thus ceasing the tolling of the statute of limitations on the claim; and (2) the statute of limitations expired before the Claimant filed the 2008 PFB.
Following an evidentiary hearing, the JCC granted the E/C’s motion and dismissed the 2008 PFB with prejudice. The JCC did not specifically reference the 2007 PFB in the final order; however, based on the arguments presented at the hearing and in the E/C’s “Motion For Summary Final Order,” it is reasonable to infer the JCC determined the Claimant’s 2007 “Notice of Resolution of Issues” was tantamount to a notice of voluntary dismissal and that the statute of limitations on Claimant’s 2008 PFB had expired. See Airey v. Wal-Mart, 24 So.3d 1264 (Fla. 1st DCA 2009).
Moreover, Claimant’s opportunity to have the JCC expressly rule on whether the “Notice of Resolution of Issues” operated as a voluntary dismissal of the 2007 PFB passed when he failed to bring this issue to the JCC’s attention following the order dismissing the 2008 PFB. See Betancourt v. Sears Roebuck & Co., 693 So.2d 680, 682 (Fla. 1st DCA 1997) (holding failure to rule “on a fully tried issue” will be considered a denial of claim for jurisdictional reasons); see also Hamilton v. R.L. Best Int’l, 996 So.2d 233, 234-35 (Fla. 1st DCA 2008) (holding error appearing for first time in final order must be brought to JCC’s attention to preserve issue for appellate review).
Accordingly, we find Claimant has failed to demonstrate a basis for reversal and summarily affirm the JCC’s order.
AFFIRMED.
HAWKES, C.J., WETHERELL and ROWE, JJ., concur.
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Longley v. Miami-Dade Cnty. Sch. Bd. & Gallagher Bassett Svcs., 82 So. 3d 1098 (Fla. 1st DCA 2012)…as no longer pending because the letter to the mediator “indieat[ed] a resolution of the issues” in that PFB and, therefore, the letter operated as a voluntary dismissal of the 2009 PFB. In support, the JCC cited Louis v. Hooters of West Palm Beach, 36 So. 3d 701 (Fla. 1st DCA 2010), and Bednarik v. Ebasco Services, 527 So. 2d 251 (Fla. 1st DCA 1988), for the proposition that a reso [*1100] lution of all issues serves as a voluntary dismissal of the claims. APPLICATION OF LAW Claimant’s March 3, 2010, PFB…
Authorities Cited
- Betancourt v. Sears Roebuck & Co. & Kemper Ins. Co., 693 So. 2d 680 (Fla. 1st DCA 1997)
- Airey v. Wal-Mart/Sedgwick, 24 So. 3d 1264 (Fla. 1st DCA 2009)
- Bank OF Am. v. Reta Butler, 996 So. 2d 233 (Fla. 4th DCA 2008)
- Hamilton v. R.L. Best Int'l & Protegrity Servs., Inc., 996 So. 2d 233 (Fla. 1st DCA 2008)