Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D18-1975 _____________________________ KENDALL HEALTHCARE GROUP, LTD., d/b/a KENDALL REGIONAL MEDICAL CENTER and EAST FLORIDA DMC-INC., Appellants/Cross-Appellees, v. THE PUBLIC HEALTH TRUST OF MIAMI-DADE COUNTY, FLORIDA, d/b/a JACKSON HOSPITAL WEST and AGENCY FOR HEALTH CARE ADMINISTRATION, Appellees/Cross-Appellants. _____________________________ On appeal from a Final Order of the Division of Administrative Hearings. Justin M. Senior, Secretary. May 8, 2020 M.K. THOMAS, J. Kendall Regional Medical Center and East Florida DMC (collectively referred to as Appellants) have appealed the Florida Agency for Healthcare Administration’s (AHCA) entry of a final administrative order denying East Florida DMC’s application for a certificate of need (CON) for a new acute care, general hospital in AHCA District 11. Appellants subsequently moved this Court for an award of attorneys’ fees and costs for the proceedings below and on appeal pursuant to Florida Rule of Appellate Procedure 9.400. Jackson Hospital West and AHCA (collectively referred to as Appellees) moved for dismissal of all claims associated with this appeal, reasoning that recent changes in Florida law rendered all issues moot. We agree that no issues raised by the parties survive a mootness analysis; therefore, we grant Appellees’ request for a dismissal of all claims associated with this appeal. For their part, Appellants do not dispute the contention that the body of their claims for relief from AHCA’s denial have been rendered moot. As Appellants acknowledge, effective on July 1, 2019, Chapter 2019-136 of the Laws of Florida eliminated the CON process for general hospitals. See § 408.036(1), Fla. Stat. (codification of Chapter 2019-136, removing new general hospitals from those projects subject to AHCA review for need). Because the requirement that Appellants obtain a CON in this instance has been removed altogether, the question of whether AHCA improperly denied East Florida DMC’s CON application under the previous legal scheme is, logically, a moot issue. That said, Appellants’ argue that one of their claims—that AHCA rejected findings of fact in the recommended order—survives a mootness analysis because agreement by this Court on the merits of the claim would support collateral legal consequences by virtue of Appellants’ claim to attorneys’ fees. Appellees counter that the provisions of the Final Order cited as rejecting findings of fact did no such thing; instead, Appellees argue that AHCA’s order simply rejected the determination that there was a “need” for the hospital according to law. We agree with Appellees. Mootness of an argument on appeal will generally destroy appellate jurisdiction; however, jurisdiction to decide the merits of a claim will be preserved “if collateral legal consequences that affect the rights of a party flow from the issue to be determined.” Godwin v. State, 593 So. 2d 211, 212 (Fla. 1992). A mere possibility that one might receive fees if successful is insufficient to be deemed a “consequence” flowing from a claim. See Lund v. Dep’t of Health, 708 So. 2d 645, 647 (Fla. 1st DCA 1998). One of Appellant’s arguments for fees, however, is based on more than mere speculation that they would have prevailed and will be addressed 2 in this opinion. See Soud v. Kendale Inc., 788 So. 2d 1051, 1053 (Fla. 1st DCA 1998) (“In the case before us, the award of fees against the Council is not as speculative and is more than a lost opportunity to potentially recover fees.”) Appellants argument for attorneys’ fees based on AHCA’s rejection of factual findings is grounded in section 120.595(5), Florida Statues. Under the subsection, this Court: . . . in its discretion may award reasonable attorney’s fees and reasonable costs to the prevailing party if the court finds that the appeal was frivolous, meritless, or an abuse of the appellate process, or that the agency action which precipitated the appeal was a gross abuse of the agency's discretion. Upon review of agency action that precipitates an appeal, if the court finds that the agency improperly rejected or modified findings of fact in a recommended order, the court shall award reasonable attorney’s fees and reasonable costs to a prevailing appellant for the administrative proceeding and the appellate proceeding. § 120.595(5), Fla. Stat. (emphasis added). If Appellants are correct that AHCA’s final order rejects factual findings and that said rejections were improper, they would be automatically entitled to an award of attorneys’ fees by virtue of section 120.595(5)’s directive that appellate courts “shall” award attorneys’ fees where an agency has improperly rejected factual findings of the recommended order. See Dep’t of Health v. Shands Jacksonville Med. Ctr., Inc., 259 So. 3d 247, 250-51 (Fla. 1st DCA 2018) (addressing a moot appeal where the Florida Statutes would have directed that courts “shall” assess attorneys’ fees if the claimant was successful on the merits and finding that the party’s potential “right” to attorneys’ fees was a collateral legal consequence allowing this Court to address the merits of the claim in spite of its mootness); Soud, 788 So. 2d at 1053 (distinguishing a claim for attorneys’ fees in a moot appeal based on language directing that courts “shall” award fees from more “speculative” claims for fees depending on a court exercising its discretion to award fees). Thus, Appellees’ claim regarding the putative factual rejections raises a collateral legal consequence that would allow this Court to rule on the merits of the claim, despite its mootness. 3 Appellants’ claim is based on three alterations of the recommended order that, Appellants assert, reject the recommended order’s factual conclusions regarding population statistics and geographic barriers to hospital access in the area. We agree with Appellees that, when read in context, the alterations complained of did not reject the specific factual findings of the recommended order, but rejected only its conclusion that there was a “need” according to statute and prior precedent. The factual findings were not disturbed, only the conclusion that the facts supported the need as claimed in East Florida DMC’s CON application. We note that when divorced from context, it appears at first glance that Appellant’s argument has merit. When taken out of context, the modifications could be interpreted as removing the factual findings of the administrative law judge, however, once placed in the context of the preceding and the reasoning offered in the Final Order—which cites to said prior precedent interpreting factual findings in the context of the ultimate needs analysis—it is clear that the Final Order is rejecting the conclusion offered by the recommended order that the evidence in question improved access enough to constitute a statutory “need.” See Flagship Manor, LLC v. Fla. Hous. Fin. Corp., 199 So. 3d 1090, 1094 (Fla. 1st DCA 2016) (holding “an agency generally must follow its own precedents.”). The Final Order does not reject the specific factual conclusions that there were some geographic barriers to access, that the population of Doral was dense, or that Kendall Regional Medical Center needed to decompress. The modifications do not reweigh the evidence or judge witnesses’ credibility. Instead, they conclude that Appellant did not demonstrate need as a statutory matter because it did not show that the cited factors impacted access to an unreasonable level. This is the determination at the heart of the needs analysis, and it is one that involves prior agency precedent on point with this issue. Thus, the modifications were not factual issues in the sense of a section 120.595(5) analysis. Because we find that AHCA rejected legal conclusions instead of facts, Appellants’ entitlement to attorneys’ fees is not automatic, even if correct on the merits. Instead, any award would depend on this Court choosing to exercise its discretion as provided in section 120.595(5). See § 120.595(5), Fla. Stat. (“[The Court,] in its 4 discretion may award reasonable attorney’s fees and reasonable costs to the prevailing party if the court finds . . . that the agency action which precipitated the appeal was a gross abuse of the agency’s discretion.”). Appellants may be correct that AHCA improperly concluded that a need had not been demonstrated under the prior statutory scheme. However, for the purposes of this appeal addressing only attorneys’ fees, that issue is not relevant. We find Appellants’ claim to attorneys’ fees is speculative and does not provide a sufficient basis to exercise a discretionary award of attorneys’ fees under section 120.595(5). Because the claim is speculative, it cannot carry the appeal through the mootness issue. Accordingly, all claims and cross-claims associated with this appeal are DISMISSED as moot, and the motion for attorneys’ fees is DENIED. WOLF and B.L. THOMAS, JJ., concur. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Stephen A. Ecenia, David M. Maloney, Tana D. Storey, and Craig D. Miller of Rutledge Ecenia, P.A., Tallahassee, for Appellants/Cross-Appellees. Christopher C. Kokoruda and Eugene Shy, Jr., Assistant State Attorneys, Miami; Thomas F. Panza, Paul C. Buckley, Elizabeth L. Pedersen, and Angelina M. Gonzalez of Panza, Maurer & Maynard, P.A., Fort Lauderdale, for Appellees/Cross-Appellants. Tracy Cooper George of the Agency for Health Care Administration, Tallahassee, for Appellee. Michael J. Glazer, E. Dylan Rivers, Stephen C. Emmanuel, and Alexandra E. Akre of Ausley McMullen, Tallahassee, for Appellees. 5