explaining that equitable tolling applies “when the plaintiff has been misled or lulled into inaction”
How later courts described this case
- explaining that equitable tolling applies “when the plaintiff has been misled or lulled into inaction”
Written by the judges who cited it.
The opinion
Third District Court of Appeal
State of Florida
Opinion filed September 18, 2024.
Not final until disposition of timely filed motion for rehearing.
________________
No. 3D24-0118
Lower Tribunal No. 2023-066-DAO-ERP
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601 Cuda Properties, LLC,
Appellant,
vs.
Monroe County Board of County Commissioners, et al.,
Appellees.
An appeal from the Governing Board of the South Florida Water
Management District.
Smith/Hawks, Christopher B. Deem, and Barton Smith, for appellant.
Robert C. Glass (West Palm Beach), Cynthia L. Hall, Senior Assistant
Monroe County Attorney, and Robert B. Shillinger, Jr., Monroe County
Attorney, for appellees.
Before LOGUE, C.J., and EMAS and MILLER, JJ.
MILLER, J.
601 Cuda Properties, LLC (“Cuda”) appeals from the dismissal of its
petition requesting a formal administrative hearing on the issuance of an
environmental resource permit to Monroe County Board of County
Commissioners. South Florida Water Management District dismissed the
petition with prejudice on the grounds the challenged agency action further
granted proprietary authorization to use sovereignty submerged lands and
the request for hearing was not filed within 14 days of receiving notice, as is
required for notices of consolidated intent. See § 373.427(2)(c), Fla. Stat.
(2023) (“Any petition for an administrative hearing pursuant to ss. 120.569
and 120.57 must be filed within 14 days of the notice of consolidated intent
to grant or deny.”). In light of the fact that Cuda alleged in its petition that
“[o]n November 20, 2023, SFWMD notified Petitioner’s counsel by email of
the proposed Agency Action,” and the record reflects the petition was filed
within 18 days, falling within the 21-day window provided by Florida
Administrative Code Rule 28-106.111(2), rather than the 14 days required
under section 373.427(2)(c), Florida Statutes, we affirm the dismissal.
However, we reverse the “with prejudice” finding. Upon remand, Cuda may
file an amended petition adding the claim of equitable tolling and raising the
allegations regarding the nature of the permit at issue (which will govern
whether the filing falls under Rule 28-106.111(2) or section 373.427(2)(c)).
2
See § 120.569(2)(c), Fla. Stat. (2023) (allowing for “equitable tolling as a
defense to the untimely filing of a petition”); Machules v. Dep’t of Admin., 523
So. 2d 1132, 1134 (Fla. 1988) (explaining that equitable tolling applies “when
the plaintiff has been misled or lulled into inaction”).
Affirmed in part, reversed in part.
3