Full Opinion

Third District Court of Appeal State of Florida Opinion filed April 6, 2022. Not final until disposition of timely filed motion for rehearing. ________________ No. 3D21-0445 Lower Tribunal No. 18-24415 ________________ Robert Tucker, Appellant, vs. Ali Ebadian, et al., Appellees. An appeal from the Circuit Court for Miami-Dade County, Jose M. Rodriguez, Judge. Trembly Law Firm, and Steven G. Hurley, and Hubert G. Menendez, for appellant. Dearr Perdigon, and Craig R. Dearr, and Wendy S. Rounds, Bales Sommers & Klein, P.A., and Jason Klein, and Richard M. Bales, Jr., for appellees. Before EMAS, MILLER, and BOKOR, JJ. PER CURIAM. In this appeal, appellant, Robert Tucker, challenges a final order dismissing his derivative suit filed on behalf of Phiston Technologies against Ali Ebadian, Chief Executive Officer of Phiston, and his son, Shahrouz Ebadian, Chief Information Officer of Phiston. Relying upon section 607.07401(3), Florida Statutes (2019) (repealed 2019), the trial court discretionarily dismissed the case, finding that a committee of two or more independent directors “made a determination in good faith after conducting a reasonable investigation upon which its conclusions [were] based that the maintenance of the derivative suit [was] not in the best interests of the corporation.” Because the statute was repealed prior to both the evidentiary hearings yielding this conclusion and the rendition of the final order under review, and we decline, as we must, to decide in the first instance the additional factual considerations implicated under newly promulgated statute section 607.0744, Florida Statutes (2020), we are constrained to reverse and remand for further consideration. See McKibben v. Mallory, 293 So. 2d 48, 53 (Fla. 1974) (“[W]here a statute has been repealed and substantially re- enacted by a statute which contains additions to or changes in the original statute, the re-enacted provisions are deemed to have been in operation continuously from the original enactment whereas the additions or changes are treated as amendments effective from the time the new statute goes into 2 effect.”); see also Scudder v. Scudder, 228 So. 3d 703, 707 (Fla. 2d DCA 2017) (“[A]s an appellate court we cannot render the initial factual determinations that still need to be made.”); Stark v. State Farm Fla. Ins. Co., 95 So. 3d 285, 289 n.4 (Fla. 4th DCA 2012) (quoting Akers v. City of Miami Beach, 745 So. 2d 532, 532 (Fla. 3d DCA 1999)) (“An appellate court ‘should not ordinarily decide issues not ruled on by the trial court in the first instance.’”). Reversed and remanded. 3