FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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No. 1D18-1776

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PATRICIA PHILLIPS,

Appellant,

v.

LEON COUNTY PUBLIC WORKS 

and PREFERRED GOVERNMENT 

CLAIMS SOLUTIONS and MARY 

ELIZABETH CRUICKSHANK,

Appellees.

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On appeal from an order of the Judge of Compensations Claims.

John J. Lazzara, Judge.

Date of Accident: June 25, 2012.

July 9, 2019

PER CURIAM.

Patricia Phillips (“Claimant”) appeals on procedural grounds 

the Judge of Compensation Claims’ (“JCC”) order denying, without 

hearing, her motion for sanctions under section 440.32(3), Florida 

Statutes (2017). Claimant alleges that the Employer/Serving 

Agent’s (E/SA) attorney, Cruickshank, raised an improper and 

unfounded discovery objection in a motion for protective order. 

The JCC denied Claimant’s motion for sanctions, finding: (1) the 

E/SA’s motion for protective order was previously denied, in part; 
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(2) the motion for sanctions was untimely; and (3) did not comply 

with the procedural requirements of Florida Administrative Code 

Rule 60Q-6.125. Because we find the JCC’s reasons for denial 

contrary to the statutory language of section 440.32(3) and based 

on an improper application of the administrative rule, we reverse 

and remand for a hearing on the merits.

I.

The underlying dispute here involved the amount of attorney’s 

fees and costs payable to Claimant’s attorney by the E/SA

pursuant to a prior order. During discovery and in preparation for 

the deposition of the E/SA’s expert, the Claimant’s attorney,

Porcher, sent a subpoena duces tecum to the expert, requesting 

documents related to the fee dispute. In response, attorney 

Cruickshank sent a proposed motion for protective order objecting 

to production of the requested documents. Porcher then sent an 

email to Cruickshank asking for a contact to resolve the dispute. 

Cruickshank did not respond to the email and filed the motion for 

protective order with the JCC. The motion asserted work product 

privilege concerning communications between herself and the 

expert “to the extent that [such documents] exist.” Cruickshank 

attests she had “personally conferred or used good-faith efforts to 

confer with opposing counsel in an effort to resolve the issues.”

Porcher objected because, among other things, Cruickshank had 

not prepared a privilege log so that he could determine what 

documents existed and the specific reasons for the withholding. He 

further argued that, contrary to her certification, Cruickshank had 

made no good faith effort to contact him or to resolve the issue

despite his attempts to do so.

At the hearing on the motion for protective order, 

Cruickshank argued that, “whether there are, or are not any 

documents” responsive to the subpoena, all such documents were 

privileged. The JCC denied the motion for protective order in part,

allowing Cruickshank the opportunity to file a privilege log

disclosing any documents withheld and to produce all others. 

Although the E/SA’s expert witness was deposed almost 

immediately following the JCC’s ruling, Cruickshank did not 

provide a privilege log to Porcher. When the parties convened for 

the deposition of the E/SA’s fee expert, Cruickshank produced 
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several documents in response to the subpoena including a onepage letter between Cruickshank and the fee expert establishing a 

rate of pay per hour. No documents were identified to Porcher that 

were withheld as containing work product or other privileged

information. 

Several weeks later, the Claimant filed the subject motion for 

sanctions. The motion requested sanctions pursuant to section 

440.32(3), which states: 

The signature of an attorney [on a pleading, motion, or 

other paper] constitutes a certificate by the signer that 

the signer has read the pleading, motion, or other paper; 

that to the best of the signer’s knowledge, information, 

and belief formed after reasonable inquiry it is well 

grounded in fact and is warranted by existing law or a 

good faith argument for the extension, modification, or 

reversal of existing law, and that it is not interposed for 

any improper purpose, such as to harass or to cause 

unnecessary delay or needless increase in the cost of 

litigation. . . . If a pleading, motion, or other paper is 

signed in violation of this section, the [JCC] or any court 

having jurisdiction of proceedings, upon motion or upon 

its own initiative, shall impose upon the person who 

signed it an appropriate sanction, which may include an 

order to pay to the other party or parties the amount of 

the reasonable expenses incurred because of the filing of 

the pleading, motion, or other paper, including a 

reasonable attorney’s fee.

The E/SA argue that the motion for sanctions was untimely 

because the motion for protective order— the underlying basis for 

sanctions — had previously been ruled upon by the JCC. More 

specifically, because rule 60Q-6.125(4)(a) creates a 21-day “safe 

harbor” period to allow for the withdrawal or correction of a 

sanctionable pleading, the Claimant’s motion for sanctions, to be 

timely, had to be filed while the motion for protective order was 

pending. The JCC denied the Claimant’s motion for sanctions 

finding that the E/SA’s motion for protective order was denied, in 

part, and the motion for sanctions was untimely and noncompliant 

with rule 60Q-6.125. In a motion for rehearing, the Claimant 
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asserted, among other points, that section 440.32(3) is not a 

prevailing party provision and that the JCC’s description of the 

ruling on the motion for protective order “did not tell the whole 

story” as Cruickshank was instructed by the JCC to prepare a 

privilege log which she did not do. The Claimant also reiterated 

that the motion for sanctions was not untimely under section 

440.32(3), and an evidentiary hearing was necessary so that the 

claim for sanctions could be heard on its merits. Finally, the 

Claimant argued that if rule 60Q-6.125(4)(a) applied, Cruickshank 

was required to take some type of corrective action under the 21-

day safe harbor provision despite the non-pendency of her motion 

for protective order. The JCC entered an order which denied the 

Claimant’s motion for rehearing and instructed counsel for the 

parties to re-read The Florida Bar Workers’ Compensation Section 

Guidelines for Professional Conduct. This appeal followed.

II.

Under the unambiguous language of section 440.32(3), 

sanctions are both mandatory and not subject to any specific time 

limitation other than the pendency of ongoing litigation. In sum, 

the plain language of the statute does not support the JCC’s ruling 

that the motion for sanctions here was either (1) untimely or (2) 

unwarranted because the E/SA’s motion for protective order was 

denied, only in part.

In making his determination, the JCC, however, also 

improperly applied the procedural requirements of rule 60Q6.125(4)(a), which provides:

A motion for sanctions under this rule shall be made 

separately from other motions or requests and shall 

describe the specific conduct alleged to violate subsection 

(2). It shall be served but shall not be filed unless the 

challenged paper, claim, defense, allegation, or denial is 

not withdrawn or appropriately corrected within 21 days 

after service of the motion. If warranted, the judge may 

award to the party prevailing on the motion the costs of 

the proceeding and attorney’s fees incurred in presenting 

or opposing the motion. 
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The language of the rule not only makes sanctions discretionary, 

but also creates a 21-day safe harbor period within which an 

offending party or attorney may withdraw a pleading to avoid 

sanctions. See Soca v. Advance Auto Parts, 185 So. 3d 1258, 1259-

60 (Fla. 1st DCA 2016).

The E/SA argues that, given the safe harbor provision, the 

order denying sanctions should be affirmed because neither 

withdrawal nor any other corrective action made sense after the 

motion to compel was adjudicated and was no longer pending. The 

Claimant responds that withdrawal was not unreasonable at the 

time the motion for sanctions was served because the order on the 

motion to compel was a non-final, interlocutory ruling; 

furthermore, other appropriate correction could include something 

as simple as an acknowledgement of a violation. While that may 

be true, we reverse because the safe harbor provision of the rule 

does not apply here. 

Section (1) of rule 60Q-6.125 generally provides for the 

imposition of sanctions for violation of the rules or of any order of 

the JCC. Section (2) refers to representations to the JCC and sets 

forth a detailed description of specific conduct which reiterates and 

expands on some of the provisions of section 440.32(3). In fact, the 

rule is identified as an implementation of section 440.32 along with

other statutory provisions. But, the rule clearly goes beyond the 

plain language of the statute because section (3) of the rule states 

that the JCC may impose sanctions upon a determination of a 

subsection (2) violation, and section (4) creates a safe harbor period 

allowing sanctions to be avoided completely.

“It is axiomatic that an administrative rule cannot enlarge, 

modify or contravene the provisions of a statute.” Campus 

Commc’ns, Inc. v. Dep’t of Revenue, 473 So. 2d 1290, 1291 n.1 (Fla. 

1985) (quoting State, Dep’t of Bus. Regulation v. Salvation Ltd., 

Inc., 452 So. 2d 65, 66 (Fla. 1st DCA 1984)); see also State Farm 

Fla. Ins. Co. v. Unlimited Restoration Specialists, Inc., 84 So. 3d 

390, 394 (Fla. 5th DCA 2012). As a result, when an administrative 

rule conflicts with the enabling statute, the statute will control. 

See, e.g., Fla. Dep’t of Revenue v. A. Duda & Sons, Inc., 608 So. 2d 

881, 884 (Fla. 5th DCA 1992) (“In the event of a conflict between a 

statute and an administrative regulation on the same subject, the 
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statute governs.”); Campus Commc’ns, Inc., 473 So. 2d at 1291 n.1 

(citing Nicholas v. Wainwright, 152 So. 2d 458, 460 (Fla. 1963)). 

The E/SA does not directly dispute the substantive nature of 

the safe harbor period created by the rule. Instead, it argues that 

the Claimant’s proper remedy is a rule challenge under Chapter 

120, and thus, the validity of the rule is not before this court. But, 

we previously rejected this argument in a similar situation

explaining:

Just as a court cannot give effect to a statute (or 

administrative rule) in any manner repugnant to a 

constitutional provision, so a duly promulgated 

administrative rule, although “presumptively valid until 

invalidated in a section 120.56 rule challenge,” City of 

Palm Bay v. State, Dep’t of Transp., 588 So. 2d 624, 628 

(Fla. 1st DCA 1991), must give way in judicial 

proceedings to any contradictory statute that applied. 

Willette v. Air Prods., 700 So. 2d 397, 398 (Fla. 1st DCA 1997) 

(rejecting argument that court lacked jurisdiction, in absence of 

rule challenge, to address validity of rule changing time deadline 

for providing workers’ compensation benefits).

The statute also does not exempt from violation a person who 

is the prevailing party. The JCC assumed there can be no violation 

of section 440.32(3) if the offending party should prevail in any 

aspect of the pleading or motion. But, this is not evident from the 

statute. In fact, the statute would appear to include sanctions for 

pleadings, motions, or other papers that are interposed “for any 

improper purpose, such as to harass or to cause unnecessary delay 

or needless increase in the cost of litigation,” without regard to the 

actual merits or outcome. § 440.32(3), Fla. Stat. (2017) (emphasis 

added). Furthermore, in the event of a violation, sanctions are 

statutorily mandated. Id. (“If a pleading, motion, or other paper is 

signed in violation of this section, the [JCC] and any court having 

jurisdiction of proceedings, upon motion or upon its own initiative, 

shall impose . . . an appropriate sanction. . . .”) (emphasis added).

In some instances, the true extent of a violation may not be known 

until after a ruling on the pleading or motion. Here, the JCC 

permitted Cruickshank the additional opportunity to file a 
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privilege log in support of the objections. However, no privilege log

was produced identifying any documents claimed to be protected. 

Cruickshank couched her objection in terms of possibility (“to the 

extent that [such privileged] documents exist”). But, this 

qualification would appear to go more to the merits of the alleged 

violation— not to the procedural requirements of rule 60Q6.125(4)(a). 

At the heart of the issue here is the tension between the 

statutory mandate to sanction all violations of section 440.32 and 

the 21-day safe harbor period created by rule 60Q-6.125(4)(a). The 

Claimant maintains that there is no conflict between the statute 

and rule if we reject the E/SA’s pendency argument. However, 

reconciling the rule with the statute remains problematic if we do 

so because, the implication is that any offending party can violate 

the provisions of section 440.32(3) without the risk of sanctions, 

or— in the Claimant’s words— “with impunity,” if the pleading or 

motion is dispensed with quickly enough (e.g., adjudicated or 

withdrawn). To accept the E/SA’s application of the rule, the 

mandatory sanctions for violations of section 440.32(3) become not 

only discretionary, but also completely avoidable. 

We recognize that this Court in Soca addressed the correct 

interpretation of the safe harbor requirement under the rule and 

in the context of alleged violations of section 440.32. See Soca, 185 

So. 3d at 1259. But, the parties there assumed that the 

administrative rule applied. As a result, the court’s reference to 

rule 60Q-6.125(4)(a) as an implementation of section 440.32(3) is 

dicta. We now clarify that this rule does not apply to the extent its 

provisions contradict the plain language of the statute.

The sanction in 440.32(3) is a stand-alone statutory sanction 

by its text and history without regard to the rule. The statute itself 

contains no safe-harbor provision or forgiveness clause. There is 

no reasonable way to read the statute as imposing merely 

discretionary sanctions to violations or as allowing a skilled 

violator a 21-day grace period. The safe harbor of the rule cannot 

be viewed as a procedural amendment to the statute. Either 

section 440.32(3) provides a stand-alone basis for sanctions, not 

subject to the administrative rule, or the administrative rule 

should be interpreted harmoniously with the statutory language 
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of section 440.32(3). Should the JCC’s denial be viewed as a true 

procedural denial, then the Claimant should have been allowed to 

correct the procedural deficiency. Thus, rule 60Q-6.125(4)(a) 

should not apply to the extent it precludes filing a motion for 

sanctions under the plain language of section 440.32(3).

We, therefore, REVERSE the JCC’s denial of Claimant’s motion 

for sanctions and REMAND for a hearing on the merits. 

MAKAR, WINOKUR, and M.K. THOMAS, JJ., concur.

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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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Randall T. Porcher of Morgan & Morgan, Tallahassee, for 

Appellant.

Mary E. Cruickshank of DuBois & Cruickshank, P.A., Tallahassee,

for Appellees.