14-006147F American Pro Diving Center, Inc. vs. Department Of Financial Services, Division Of Workers' Compensation Status: Closed DOAH Final Order on Wednesday, May 11, 2016.

Summary: The claim under 57.111, Florida Statutes, dismissed for failure to prosecute.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AMERICAN PRO DIVING CENTER,

INC.,

Petitioner,

vs. Case Nos. 14 - 6147 F

16 - 0379F

DEPARTMENT OF FINANCIAL

SERVICES, DIVISION OF WORKERS'

COMPENSATION,

Respondent.

_______________________________/

FINAL ORDER OF DISMISSAL

Pursuant to notice, t his cause was scheduled for hea ring

before James H. Peterson, III, Administrative Law Judge of the

Division of Administrative Hearings. The hearing was noticed by

that Notice of Hear ing dated February 24, 2016, to be heard on

May 9 and 10, 2016, at 9:00 a.m. , at the Division of

Administrative Hearings, the DeSoto Building, 1230 Apalachee

Parkway, Tallahassee, Florida. The Notice of H earing was entered

following a telephonic hearing i n which counsel for the parties

were advised of the hearing dates and times. The Notice of

Hearing was not returned as undeliverable. Neither Petitioner

nor its counsel appeared at the scheduled time of 9:00 a.m. on

the day of the hearing. Three c ounsel for Respondent were

present with witnesses ready to proceed on May 9, 2016 . A court

reporter was also present and recorded the proceedings.

APPEARANCES

For Petitioner: Kristian Eiler Dunn, Esquire

Bennett M. Miller, Esquire

Dunn and Miller, P.A.

215 East Tharpe Avenue

Tallahassee, Florida 32303

For Respondent: Thomas Nemecek, Esquire

Trevor S . Sutor, Esquire

Jonathan Martin, Esquire

Department of Financial Services

Division of Workers' Compensation

200 East Gaines Street

Tallahassee, Flo rida 32399

STATEMENT OF THE ISSUE

Whether Petitioner is entitled to attorneys Ó fees under

57.111, Florida Statutes.

FINDING S OF FACT AND CONCLUSIONS OF LAW

1. After waiting for approximately 15 minutes after

9:00 a.m. on May 9, 2016, at the undersigne d's directions, the

undersignedÓs assistant contacted Petitioner's counsel by

telephone. During that conference call, Petitioner's counsel

advised that he had received the Notice of Hearing scheduling

this case, but that he had erroneously failed to prope rly

calendar the hearing. PetitionerÓs counsel was advised that the

parties should assemble as scheduled on May 10, 2016.

2. Following the phone call, PetitionerÓs counsel filed

PetitionerÓs CounselÓs Apology to the Court & Opposing Party, in

which Peti tionerÓs counsel took responsibility for failing to

appear.

3. Thereafter, on May 10, 2016, at 8:00 a.m., RespondentÓs

counsel filed RespondentÓs Motion to Dismiss for Failure to

Prosecute.

4. When the final hearing was reconvened at 9 :00 a .m.,

May 10 , 2016, Petitioner's counsel appeared with co - counsel, his

clientÓs representative, and witnesses. The undersigned heard

argument on RespondentÓs Motion to Dismiss for Failure to

Prosecute. As noted in the Motion to Dismiss for Failure to

Prosecute, ÐPet itioner has continually confounded these

proceedings by failing to timely file affidavits to initiate

these [consolidated] cases [and] failing to timely respond to

discovery.Ñ

5. It is further found that PetitionerÓs failure to appear

as properly noticed on May 9, 2016, was without good cause, and

Petitioner failed to prosecute the case as scheduled.

6. As the proponent of its claim for attorneyÓs fees and

costs under section 57.111, Florida Statutes, Petitioner had the

initial burden of proof to demons trate by a preponderance of the

evidence that it qualifies for relief under section 57.111. By

failing to appear for the May 9, 2016, hearing, Petitioner failed

to meet its burden.

7. Upon consideration of RespondentÓs Motion to Dismiss for

Failure to P rosecute, as well as PetitionerÓs CounselÓs Apology

to the Court & Opposing Party, and further considering the

pleadings, motions, and procedural posture of this case and the

underlying proceedings, RespondentÓs Motion to Dismiss for

Failure to Prosecute w as GRANTED.

ORDER

Based upon the forgoing, the above - styled action for fees

under section 57.111, Florida Statutes, is DISMISSED. The file

of the Division of Administrative Hearings is closed.

DONE AND ORDERED this 11 th day of May , 2016 , in

Tallahassee, Leon County, Florida.

S

JAMES H. PETERSON, III

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6 847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 11 th day of May, 2016 .

COPIES FURNISHED:

Kristian Eiler Dunn, Esquire

Bennett M. Miller, Esquire

Dunn and Miller, P.A.

215 East Tharpe Avenue

Tallahassee , Florida 32303

(eServed)

Thomas Nemecek, Esquire

Trevor S. Sutor, Esquire

Johnathan Martin, Esquire

Department of Financial Services

Division of Workers' Compensation

200 East Gaines Street

Tallahassee, Florida 32399

(eServed)

Julie Jones, CP, FRP, Ag ency Clerk

Division of Legal Services

Department of Financial Services

200 East Gaines Street

Tallahassee, Florida 32399 - 0390

(eServed)

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is

entitled to judicial re view pursuant to section 120.68, Florida

Statutes. Review proceedings are governed by the Florida Rules

of Appellate Procedure. Such proceedings are commenced by

filing the original notice of administrative appeal with the

agency clerk of the Division of Administrative Hearings within

30 days of rendition of the order to be reviewed, and a copy of

the notice, accompanied by any filing fees prescribed by law,

with the clerk of the District Court of Appeal in the appellate

district where the agency maintain s its headquarters or where a

party resides or as otherwise provided by law.