Department of Revenue, on behalf of Haydie Marquez v. Calixto Manuel Lopez , 252 So. 3d 823 ( 2018 )

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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No. 1D17-5381
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DEPARTMENT OF REVENUE, on
behalf of Haydie Marquez,
Appellant,
v.
CALIXTO MANUEL LOPEZ,
Appellee.
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On appeal from the Division of Administrative Hearings.
Robert L. Kilbride, Administrative Law Judge.
August 1, 2018
PER CURIAM.
The Department of Revenue appeals the administrative law
judge’s Final Administrative Support Order, in which the father,
Carlos Lopez, was ordered to pay child support and retroactive
child support to the mother, Haydie Marquez, on whose behalf the
Department was acting to establish Lopez’s support obligation to
their child. See §409.2557(1) & (2), Fla. Stat. (2017).
We dismiss this appeal for lack of standing. “‘An appeal of a
wholly favorable judgment must be dismissed.’” Fla. Dep’t of Envtl.
Prot. v. Fla. Reemployment Assistance Appeals Comm’n, 123 So. 3d
1154 (Fla. 1st DCA 2012) (quoting Dep’t of Health v. Fresenius
Med. Care Holdings, Inc., 935 So. 2d 636, 637 (Fla. 1st DCA 2006));
see also Friends of Perdido Bay, Inc. v. Fla. Dep’t of Envtl. Prot., 44
So. 3d 650, 651 (Fla. 1st DCA 2010) (dismissing cross-appeal, after
appellants voluntarily dismissed appeal, because cross-appellants
were the prevailing parties below and were neither adversely
affected by any provision of the order under review nor faced any
consequences by the application of the challenged statutory
provision); Fla. Comm’n on Hurricane Loss Projection Methodology
v. State, Dep’t of Ins., 716 So. 2d 345, 346 (Fla. 1st DCA 1998)
(declining to examine an administrative law judge’s rationale for a
ruling at the behest of the party in whose favor the administrative
law judge ruled); Gen. Dev. Utils., Inc. v. Fla. Pub. Serv. Comm’n,
Div. of Admin. Hearings, 385 So. 2d 1050, 1051 (Fla. 1st DCA 1980)
(“It is a long standing rule that a judgment or decree wholly in
favor of a party may not be appealed by him, for he is not aggrieved
thereby.”).
DISMISSED.
BILBREY and JAY, JJ., concur; WINOKUR, J., concurs with opinion.
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Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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WINOKUR, J., concurring.
I agree with the majority that we should dismiss this appeal
because the Department of Revenue (DOR) does not have standing
to challenge the Final Administrative Support Order (Order), on
the ground that the Order is “wholly favorable” to DOR. See Fla.
Dep’t of Envtl. Prot. v. Fla. Reemployment Assistance Appeals
Comm’n, 123 So. 3d 1154 (Fla. 1st DCA 2012). But even if we did
not dismiss this appeal for lack of standing, I would reject DOR’s
argument and affirm the Order.
Because Marquez, the mother of the child, was receiving
Medicaid, DOR offered her their services in obtaining child support
from Lopez, the father. Marquez accepted these services and DOR
instituted a proceeding to establish an administrative support
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order on behalf of Marquez. DOR then filed a proposed
administrative support order, which Lopez disputed and exercised
his right to a hearing before an administrative law judge (ALJ).
The caption of the hearing before the ALJ was “DEPARTMENT
OF REVENUE AND HAYDIE MARQUEZ, Petitioners, vs.
CALIXTO MANUEL LOPEZ, Respondent.” After the hearing, the
ALJ filed the Order, which ordered Lopez to pay current and
retroactive child support and which offered any party “who is
adversely affected” by the Order the right to appeal to this court.
See also § 120.68 and 409.2563(10)(a), Fla. Stat. DOR appealed,
without explaining how it, or Marquez, was “adversely affected” by
this Order. Lopez did not appeal or cross-appeal.
On appeal to this court, the only argument DOR makes in its
initial brief is that the ALJ erred in calculating retroactive support
because it “charged [Lopez] twice” for his June 2017 income. DOR
does not describe how this alleged error adversely affects it or
Marquez. It appears instead that the alleged error adversely
affects Lopez, who neither objected to the alleged error below, nor
appealed the Order, nor even filed an answer brief.
If Lopez appealed this alleged error, this court would have
rejected the appeal because he failed to preserve the error for
review. See Alfred v. Dep’t of Revenue, 204 So. 3d 583, 585 (Fla. 4th
DCA 2016). We should not ignore Lopez’s lack of preservation
simply because DOR raises the unpreserved error itself. See Davis
v. Dep’t of Revenue, 221 So. 3d 790 (Fla. 2d DCA 2017) (declining
to accept DOR’s concession of error due to “Mr. Davis’s failure to
participate at any point in the proceedings below”). An appellant
cannot “concede error” on behalf of the appellee when that error
has never been raised by appellee. I would reject any such
concession and affirm the order under review.
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Pamela Jo Bondi, Attorney General, and Toni C. Bernstein, Senior
Assistant Attorney General, Tallahassee, for Appellant.
No appearance for Appellee.
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