BARSAN
v.
TRINITY FIN. SERVS., LLC
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Appellant challenged the Department of Health and Rehabilitative Services' issuance of a Certificate of Need (CON) for a hemodialysis facility. The court dismissed the appeal as moot because a change in Florida law eliminated the CON requirement effective October 1, 1987, and rejected appellant's argument that potential attorney's fees justified deciding the case on the merits.
The appeal is dismissed as moot because the change in law eliminated any actual controversy. The court rejected the argument that potential attorney's fees under section 120.57(1)(b)10 provide sufficient interest to overcome the mootness doctrine, and found that even on the merits, the agency action did not constitute a gross abuse of discretion warranting attorney's fees.
[1] A case is moot and will be dismissed when a change in circumstances renders an actual controversy nonexistent.
[2] The possibility of an attorney's fee award does not necessarily overcome the principle of mootness.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Due to the enactment of section 381.-706(l)(c) Fla.Stat. (1987), which became effective October 1,1987, a CON is no longer required for the operation of an artificial kidney center.”
Establishes the change in law that rendered the controversy moot during the pendency of the appeal.
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Join FLexlaw to unlock all legal intelligenceWest Boca Raton Artificial Kidney Center sought and received a Certificate of Need from HRS for operation of a free-standing hemodialysis facility. Ap…
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PER CURIAM.
This appeal challenges a final order of the Department of Health and Rehabilitative Services (HRS) granting appellee, West Boca Raton Artificial Kidney Center, a Certificate of Need (CON) for the operation of a free standing hemodialysis facility. Due to the enactment of section 381.-706(l)(c) Fla.Stat. (1987), which became effective October 1,1987, a CON is no longer required for the operation of an artificial kidney center. Therefore, we dismiss this appeal as moot.
Appellant objects to dismissal, arguing that this court should now decide what is a purely academic question because, if the decision is in appellant’s favor, it will be entitled to attorney’s fees under section 120.57(l)(b)10 Fla.Stat. (1986 Supp.) Section 120.57(l)(b)10 authorizes granting an attorney fee if “the agency action which *1115precipitated the appeal was a gross abuse of the agency’s discretion.”
It is doubtful that the mere possibility of an award of attorney’s fees is a sufficient interest to overcome the fundamental appellate principle that cases will be dismissed as moot when, due to a change in circumstances, an actual controversy no longer exists. Compare Burch v. Polynesian Villas Condominium, 491 So. 2d 1264 (Fla. 4th DCA 1986); Del Valle v. Biltmore II Condominium Association, 411 So. 2d 1356 (Fla. 3d DCA 1982). However, we need not decide the question here. We have examined the record, the initial brief, and appellant’s arguments in opposition to dismissal, and find that even assuming appellant would have been successful had the case been disposed of on the merits, appellant would not be entitled to an award under section 120.57(l)(b)10. In spite of the vehemence with which appellant expresses its opinion to the contrary, the agency action which precipitated this appeal did not constitute a gross abuse of discretion. It follows that a decision in this case would have no practical effect on the parties, and therefore the appeal is moot. Dehoff v. Imeson, 153 Fla. 553, 15 So. 2d 258 (1943).
Accordingly, this appeal is dismissed.
JOANOS, WIGGINTON and ZEHMER, JJ., concur.
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Pitcher v. Schneider (Fla. 5th DCA 2018)
- Albert v. Applegate et ux., 377 So. 2d 1150 (Fla. 1979)
- Dehoff v. Imeson, 153 Fla. 553 (Fla. 1943)
- DEL Valle v. Biltmore II Condo. Ass'n, Inc., 411 So. 2d 1356 (Fla. 3d DCA 1982)
- Rodriguez v. Lorenzo, 215 So. 3d 631 (Fla. 3d DCA 2017)
- Alessandra Barbieri v. Muller, 124 So. 3d 320 (Fla. 5th DCA 2013)
- Bennett v. Deutsche Bank Nat'l Tr. Co., 124 So. 3d 320 (Fla. 4th DCA 2013)
- Cleto Marcello Cardona v. Casas, 225 So. 3d 384 (Fla. 3d DCA 2017)
- Burch v. Polynesian Villas Condo., Inc., 491 So. 2d 1264 (Fla. 4th DCA 1986)