| Date issued: 09/06/2011 | |
| Editor: Betsy Stupski |  |
Clicking the icon following the number of each case cited below will link you directly to the cited opinion. AG Advisory Opinions are accessible from the list of links.
Appellate Alert 2011-14
September 6, 2011
First District Court of Appeal
Mendelsohn v. Florida Department of Health 1D11-3278
8/31/11
The Court relied on comma placement and legislative history to interpret statute.
Dr. Mendelsohn was convicted in federal court of a felony. After his conviction the Florida Department of Health, without a hearing, issued an emergency suspension order that suspended his license pursuant to section 456.074(1), Florida Statutes. Dr. Mendelsohn objected, arguing that although he has a felony conviction, section 456.074(1), Florida Statutes authorized an emergency suspension only when the federal conviction related to the Medicaid program.
The First District struck down the suspension order. In doing so, the Court looked at comma placement to determine that the phrase “relating to the Medicaid program” modified each of the statutes listed in section 456.074(1) and not just the last section listed. The Court said, “Based on the rules of grammatical construction, , a qualifying phrase will be read as modifying all items listed in a series unless there is no comma between the last of the series and the qualifying phrase.” In further analysis, the Court said “…while there has been no Florida case addressing whether “relating to the Medicaid program” in section 456.074(1)(b) modifies all of the enumerated offenses, or only the last offense, this particular subsection was added to Senate Bill 1986, which was originally entitled ‘A bill to be entitled An act relating to Medicaid.’... Further, the Legislative Bill Analysis evidences the Bill was enacted with the purpose of curtailing the growth of Medicaid fraud in Florida... As such, it was clearly the Legislature’s intent in enacting section 456.074(1)(b) to authorize the issuance of an ESO only for those enumerated offenses which ‘relate’ to Medicaid. The Court concluded by saying, “Giving weight to the statute’s plain meaning and the legislative intent, the underlying facts do not qualify as one of those instances where DOH may issue an ESO without providing specific reasons why the suspension is necessary to prevent immediate harm to the public. As such, we grant the petition and order the ESO be stricken.”
1D11-3278
 1dcacv Mendelsohn v DOH.pdf
Third District Court of Appeal
Grupo Radio v. American Merchant Banking Group 3D10-3237
8/31/11
Plaintiff who was suing a Mexican company was required to designate defendant’s response time in calendar days or business days to comply with the Hague Convention.
American Merchant Banking Group sued Grupo Radio and its Florida subsidiary, Grupo Radio L. A. When American attempted service on Grupo Radio, a Mexican company, they failed to state whether Grupo Radio’s required response time was calculated by business or calendar days as required by the Hague Convention. Grupo Radio moved to dismiss based on improper service but was denied by the trial court.
The Third District reversed stating, “In Florida, the Hague Convention applies in all cases ‘where there is occasion to transmit a judicial or extrajudicial document for service abroad’ …American thus is subject to the requirements of the Hague Convention, and it may easily amend its alias summons to add the single word which would make the summons proper.”
3D10-3237
 3dcacv Grupo Radio v American.doc
Miami-Dade County v. Rodriguez 3D10-856
8/31/11
The court’s discretionary certiorari review is appropriate for petitions by public agencies whose motion to dismiss was based on sovereign immunity.
A police officer shot Rodriguez, a store owner, by mistake. Rodriguez brought an action against the County for negligence. The County moved to dismiss based on sovereign immunity. After he trial court denied the motion, the County filed a petition for certiorari.
The Third District first distinguished between claims of the absence of liability (no duty) and claims of sovereign immunity. The Court determined that certiorari was not available when the trial court denied a motion to dismiss based on the absence of liability (based on a lack of duty of care) but then determined that certiorari should be available when the denied motion to dismiss was based on sovereign immunity. The Court said, “We will, therefore, like our sister courts, no longer exercise our certiorari jurisdiction to review orders either denying motions to dismiss or denying motions for summary judgment where the sovereign argues that it is not liable as alleged because no duty can be demonstrated…We cannot, however, join our sister courts in refusing, on jurisdictional grounds, to entertain all writs from denials of motions to dismiss or for summary judgment on sovereign immunity grounds.” The Court then certified the conflict with sister courts to the Florida Supreme Court.
8/31/11
 3dcacv Miami-Dade v Rodriguez.doc Fourth District Court of Appeal
Department of Revenue v. Varela 4D10—2524
8/31/11
Trial court could not restrict the statutory authority of the Department of Revenue.
The Department of Revenue challenged ten court orders where the trial court placed a restriction on how much child support could be withheld from unemployment compensation benefits. The Fourth District found that the court had overstepped its authority since the Department of Revenue had statutory authority to withhold 40% of the unemployment benefits to satisfy child support obligations. The Court said, “The trial court was without authority to place a restriction on authority granted to the Department by statute.”
4D10—2524
 4dcacv DOR v Varela.doc
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