The opinion
Third District Court of Appeal
State of Florida
Opinion filed March 25, 2026.
Not final until disposition of timely filed motion for rehearing.
________________
No. 3D24-2101
Lower Tribunal No. 2024-086-DAO-ERP
________________
601 Cuda Properties, LLC, etc.,
Appellant,
vs.
Monroe County Board of County Commissioners and South
Florida Water Management District,
Appellees.
An Administrative Appeal from the South Florida Water Management
District.
Smith/Hawks, and Barton W. Smith and Christopher B. Deem (Key
West), for appellant.
Robert C. Glass and Alison K. Brown (West Palm Beach), for appellee
South Water Management District; Joseph X. DiNovo, Assistant County
Attorney, Monroe County Attorney’s Office, for appellee Monroe County
Board of County Commissioners.
Before SCALES, C.J., and LOGUE and LOBREE, JJ.
LOGUE, J.
Appellant 601 Cuda Properties, LLC, appeals the Governing Board of
the South Florida Water Management District’s Order dismissing its
Amended Petition for Formal Administrative Proceeding with prejudice.
Appellant alleges the District improperly dismissed its petition without first
allowing an evidentiary hearing to determine whether equitable tolling
applied. Because we conclude that the District was not required to conduct
an evidentiary hearing as there were no factual issues in dispute, we affirm.
Factual and Procedural History
In 2023, Appellant filed a petition requesting a formal administrative
hearing on the issuance of an environmental resource permit to the Monroe
County Board of County Commissioners. The District dismissed the petition
with prejudice because the challenged agency action also granted
proprietary authorization to use sovereignty submerged lands, which meant
the deadline to request a hearing was 14 days from receipt of notice, and
Appellant’s petition was filed 18 days after Appellant received notice.
On appeal, this Court affirmed the dismissal of the petition as untimely
but reversed the “with prejudice” portion of the order and remanded for
further proceedings. See 601 Cuda Props., LLC v. Monroe Cnty. Bd. of Cnty.
Comm’rs, 401 So. 3d 517, 518 (Fla. 3d DCA 2024). The Court instructed that
on remand, Appellant “may file an amended petition adding the claim of
2
equitable tolling and raising the allegations regarding the nature of the permit
at issue (which will govern whether the filing falls under [Florida
Administrative Code] Rule 28-106.111(2) or section 373.427(2)(c)[, Florida
Statutes, each of which sets different deadlines for seeking a hearing]).” Id.
Appellant thereafter filed its Amended Petition. Specific to its claim of
equitable tolling, Appellant alleged that the notice it received was called an
“Individual Environmental Resource Permit.” Appellant further alleged that
the notice did not provide a specific deadline to request a hearing but rather
contained multiple deadlines that might apply to all the various actions the
District might take, including a 21-day deadline for appealing the issuance of
an individual environmental resource permit. Appellant noted there was also
a reference to a 14-day deadline for a “notice of consolidated intent to grant
or deny . . .” but Appellant contended these terms were not used anywhere
in the notice.
Appellant thus asserted equitable tolling was proper because the
notice at issue stated it was for an individual environmental resource permit,
there was no reference in the notice to a “consolidated notice of intent,” and
the notice contained contradictory deadlines. Appellant alleged it was
challenging the issuance of an environmental resource permit, and the
3
original petition complied with the deadline for challenging an environmental
resource permit.
The District once again dismissed Appellant’s Amended Petition with
prejudice, and it did so without an evidentiary hearing. In its dismissal order,
the District noted Appellant did not allege that any communication with a
District or County representative misled or lulled Appellant into believing that
the 21-day deadline applied. The District further found that the permit
contained reasonable notice of its consolidated nature, including ample
language identifying itself as both an environmental resource permit and a
sovereign submerged lands authorization. Finally, the District concluded that
the notice clearly distinguished the application of differing deadlines and,
because Appellant did not allege any misleading communications by District
or County representatives, Appellant was not lulled or misled into
noncompliance by the District or the County’s actions. Instead, the District
concluded, Appellant failed to comply with the applicable deadline due to its
own mistake. This appeal timely followed.
Analysis
This appeal essentially boils down to whether an evidentiary hearing
was required to resolve the issue of equitable tolling and whether Appellant
sufficiently pled a claim for equitable tolling of the filing deadline. Appellant
4
contends an evidentiary hearing was required and the District erred by
making findings of fact and credibility determinations without conducting an
evidentiary hearing. The District, in turn, responds that it accepted
Appellant’s allegations as true, rendering an evidentiary hearing
unnecessary, and that the allegations were insufficient as a matter of law to
support equitable tolling of the deadline to seek administrative review. We
agree with the District’s position and therefore affirm.
The problem with Appellant’s position on appeal is that it fails to identify
what the factual disputes below were. It contends the District improperly
made findings of fact and credibility determinations without an evidentiary
hearing but it fails to identify what these findings and determinations were.
Instead, Appellant generally contends that the District concluded it was
“allowed to determine the factual issues regarding the equitable tolling
argument without a hearing.” This is inaccurate.
Rather, what the District did was accept Appellant’s allegations as true,
except to the extent that they were directly contradicted by the evidence
already in the record. Specifically, the District rejected Appellant’s allegations
in its Amended Petition relating to the notice Appellant received because it
determined, based on its review of the notice provided, that the notice
sufficiently advised Appellant that it concerned both an environmental
5
resource permit and an authorization for use of sovereign submerged lands.
The District’s conclusions in this regard are sound.
The notice at issue specifically admonished recipients in its very first
paragraph to “[p]lease read this entire agency action thoroughly and
understand its contents.” Then, on its second page under “Project
Summary,” the notice clearly stated it was an “Environmental Resource
Permit” that also “include[d] a Sovereignty Submerged Lands (SSL) public
easement and letter of consent to authorize the activities of SSL.” On page
six, in turn, the notice contained an entire section titled “Sovereignty
Submerged Lands” that indicated the proposed work was to occur on lands
“located on SSLs – lands owned by the State of Florida” and that “[t]he
District ha[d] determined that the activity qualifies for and requires a public
easement[.]” Finally, page 20 of the notice, titled “Notice of Rights,” contained
the following:
RIGHT TO REQUEST ADMINISTRATIVE
HEARING
A person whose substantial interests are or may be
affected by the South Florida Water Management
District’s (District) action has the right to request an
administrative hearing on that action pursuant to
Sections 120.569 and 120.57, Florida Statutes.
Persons seeking a hearing on a District decision
which affects or may affect their substantial interests
shall file a petition for hearing in accordance with the
filing instructions set forth herein within 21 days of
6
receipt of written notice of the decision unless one of
the following shorter time periods apply: (1) within 14
days of the notice of consolidated intent to grant or
deny concurrently reviewed applications for
environmental resource permits and use of
sovereign submerged lands pursuant to Section
373.427, Florida Statutes; or (2) within 14 days of
service of an Administrative Order pursuant to
Section 373.119(1), Florida Statutes. "Receipt of
written notice of agency decision" means receipt of
written notice through mail, electronic mail, posting,
or publication that the District has taken or intends to
take final agency action. Any person who receives
written notice of a District decision and fails to file a
written request for hearing within the time frame
described above waives the right to request a
hearing on that decision.
(emphasis added). The Notice of Rights placed Appellant on notice that the
shorter 14-day deadline applied in situations involving both environmental
resource permits and use of sovereign submerged lands, which the permit
at issue clearly referenced on pages two and six.
In Machules v. Department of Administration, 523 So. 2d 1132 (Fla.
1988), the Florida Supreme Court held that equitable tolling of time limits
may apply to extend deadlines in administrative proceedings where the
plaintiff has in some way been misled or lulled into inaction. Id. at 1134 (“The
doctrine [of equitable tolling] serves to ameliorate harsh results that
sometimes flow from a strict, literalistic construction and application of
administrative time limits contained in statutes and rules.” (quoting Machules
7
v. Dep’t of Admin., 502 So. 2d 437, 446 (Fla. 1st DCA 1986) (Zehmer, J.,
dissenting))). The Florida Supreme Court further noted that the equitable
tolling doctrine “‘focuses on the plaintiff’s excusable ignorance of the
limitations period and on [the] lack of prejudice to the defendant.’” Id. (quoting
Cocke v. Merrill Lynch & Co., 817 F.2d 1559, 1561 (11th Cir.1987)). See also
Brown v. State, Dep’t of Fin. Servs., 899 So. 2d 1246, 1247–48 (Fla. 4th DCA
2005). “Generally, the tolling doctrine has been applied when the plaintiff has
been misled or lulled into inaction, has in some extraordinary way been
prevented from asserting his rights, or has timely asserted his rights
mistakenly in the wrong forum.” Machules, 523 So. 2d at 1134.
Here, as the District noted, Appellant has not alleged that any
communication with a District or County representative misled or lulled
Appellant into believing that the 21-day deadline applied. Instead, Appellant
essentially contends that the notice itself somehow misled Appellant
because it did not contain the words “notice of consolidated intent to grant or
deny” and it was not titled a “consolidated notice of intent.” Appellant,
however, fails to cite any Florida law or administrative rule requiring this
specific language.
Accordingly, because the notice here included ample language
identifying that it was both an environmental resource permit and a sovereign
8
submerged lands authorization and Appellant failed to plead any facts
establishing that it was somehow misled or lulled into inaction, Appellant has
failed to establish entitlement to equitable tolling of the filing deadline.
Conclusion
We affirm the District’s Order Dismissing Appellant’s Amended Petition
for Formal Administrative Proceeding with Prejudice. Appellant has failed to
demonstrate any reversible error on appeal. The District was not required to
conduct an evidentiary hearing because there were no factual issues in
dispute. The District instead properly concluded as a matter of law that
Appellant was not entitled to equitable tolling of the deadline to request a
hearing, and Appellant has not challenged this legal conclusion.
Affirmed.
9