existing rule in Florida

2018Prot., 714 So. 2d 493, 498-99 (Fla. 1st DCA 1998) (holding that an agency statement explaining “how an existing rule of general applicability will be applied in a particular set of facts” is not itself an unadopted rule and does not require agency rulemaking).

2014Prot., 714 So.2d 493, 498 (Fla. 1st DCA 1998) ("An agency statement explaining how an existing rule of general applicability will be applied in a particular set of facts is not itself a rule.”).

2021Id. (finding "that the court erred in its application of the law by failing to consider all of the mandated factors in determining the alimony issue"); Canakaris, 382 So. 2d at 1202 ("In order to properly review orders of the trial judge, appellate courts must recognize the distinction between an incorrect application of an existing rule of law and an abuse of discretion."); Nichols v. Nichols, 907 So. 2d 620, 622 (Fla. 4th DCA 2005) ("[A]n abuse of discretion standard is not appropriate where the trial 21 judge fails to apply the correct legal standard, such as when 'the trial court erred by

2011As Canakaris v. Canakaris, 382 So.2d 1197, 1202-3 (Fla.1980) (citations omitted), long ago explained: In order to properly review orders of the trial judge, appellate courts must recognize the distinction between an incorrect application of an existing rule of law and an abuse of discretion.

1995Specifically, in Jones v. Charles, 518 So.2d 445, 446 (Fla. 4th DCA 1988), this court held "[a] party asserting a good faith, soundly-based attempt to change an existing rule of law is not subject to attorney's fees under section 57.105." In the instant case, at the time Carnival filed its complaint in this case, another trial court had ruled in Carnival's favor on the same issue and allowed recovery of the debt.

1993In Jones , this court held that "[a] party asserting a good faith, soundly-based attempt to change an existing rule of law is not subject *1026 to attorney's fees under section 57.105." Id. at 446 .

2006The decision in McMillian was but a specific application of the general rule that "an amendment to a statute of limitations cannot [and should certainly not ordinarily be construed to] extinguish an existing claim, [although such an amendment] can, consistent with due process, shorten the limitation period applicable to the prior claim if the intent to make the amendment retroactive is clearly expressed, and if a reasonable time is allowed within which to seek enforcement [of the existing claim, before it is cut off.]" Polk County BOCC *1259 v. Special Disability Trust Fund, 791 So.2d 581, 583

2004See Polk County BOCC v. Special Disability Trust Fund, 791 So.2d 581, 583 (Fla. 1st DCA 2001).

2001See In re Estate of Jelley, 360 So.2d 1313 (Fla. 2d DCA 1978).

1996See In re Estate of Jelley, 360 So.2d 1313 (Fla. 2d DCA), cert. denied, 366 So.2d 881 (Fla.1978).

1992The Florida Bar Re: Amendment to Rules of Civil Procedure, Rule 1.442 (Offer of Judgment), 550 So.2d 442, 443 (Fla. 1989).

1992The Florida Bar Re: Amendment to Rules of Civil Procedure, Rule 1.442 (Offer of Judgment), 550 So.2d 442, 443 (Fla. 1989).

2019If challenging an existing rule, the petitioner has the burden of proving by a preponderance of the evidence that the existing rule is an invalid exercise of delegated legislative authority. § 120.56(3)(a), Fla. Stat. If challenging a proposed rule, the burden shifts to the agency to prove by a preponderance of the evidence that the proposed rule is not an invalid exercise of delegated legislative authority. § 120.56(2)(a), Fla. Stat.; Fla. Bd. of Med. v. Fla. Acad. of Cosmetic Surgery , 808 So.2d 243 , 251 (Fla. 1st DCA 2002).

2019If challenging an existing rule, the petitioner has the burden of proving by a preponderance of the evidence that the existing rule is an invalid exercise of delegated legislative authority. § 120.56(3)(a), Fla. Stat. If challenging a proposed rule, the burden shifts to the agency to prove by a preponderance of the evidence that the proposed rule is not an invalid exercise of delegated legislative authority. § 120.56(2)(a), Fla. Stat.; Fla. Bd. of Med. v. Fla. Acad. of Cosmetic Surgery , 808 So.2d 243 , 251 (Fla. 1st DCA 2002).

2010An administrative agency is required to promulgate rules on “those statements which are intended by their own effect to create rights, or to require compliance, or otherwise to have the direct and consistent effect of law.” Agency for Health Care Admin. v. Custom Mobility, 995 So.2d 984, 986 (Fla. 1st DCA 2008) (quoting McDonald v. Dep’t of Banking & Fin., 346 So.2d 569, 581 (Fla. 1st DCA 1977)).

1991The seminal case interpreting section 120.52(16), and addressing at what point an agency policy statement constitutes a rule which must be duly promulgated as such by the agency, is McDonald v. Dept. of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977), appeal after remand, 361 So.2d 199 (Fla. 1st DCA 1978), cert. denied, 368 So.2d 1370 (Fla. 1979).

2007“An agency statement that either requires compliance, creates certain rights while adversely affecting others, or otherwise has the direct and consistent effect of law is a rule.” Vanjaria, 675 So.2d at 255 .

2005Section 120.52(15), Florida Statutes (2003) defines an agency rule, in part, as an "agency statement of general applicability that implements, interprets, or prescribes law or policy or describes the procedure or practice requirements of an agency and includes any form which imposes any requirement or solicits any information not specifically required by statute or by an existing rule." This Court has stated that, "[a]n agency statement that either requires compliance, creates certain rights while adversely affecting others, or otherwise has the direct and consistent effect of law is a rule."

1995Indeed, since 1986 the statute has provided, with an exception not applicable here, that an assessment of attorney's fees under subsection 57.105(1) will be paid "in equal amounts by the losing party and the losing party's attorney... ." § 57.105(1), Fla. Stat. (1993); Ch. 86-160, § 61, at 756, Laws of Fla. "Applicable to the circumstances of this case is the principle that when a party engages in a good faith, soundly based, nonfrivolous, but unsuccessful, attempt to change an existing rule of law, attorney's fees under section 57.105 are inappropriate." Muckerman v. Burris, 553 So.2d 1300, 1

1992Muckerman v. Burris, 553 So.2d 1300 (Fla. 3d DCA 1989), review denied, 567 So.2d 435 (Fla.1990).

2026See Downing v. Bird, 100 So. 2d 57, 64 (Fla. 1958) ("[I]n either prescription or adverse possession, the use or possession is presumed to be in subordination to the title of the true owner, and with his permission and the burden is on the claimant to prove that the use or possession is adverse."); Dana v. Eilers, 279 So. 3d 825 , 831 (Fla. 2d DCA 2019) ("All the evidence here is consistent with, and reinforces, the existing presumption of permissive use.

2021Id. (finding "that the court erred in its application of the law by failing to consider all of the mandated factors in determining the alimony issue"); Canakaris, 382 So. 2d at 1202 ("In order to properly review orders of the trial judge, appellate courts must recognize the distinction between an incorrect application of an existing rule of law and an abuse of discretion."); Nichols v. Nichols, 907 So. 2d 620, 622 (Fla. 4th DCA 2005) ("[A]n abuse of discretion standard is not appropriate where the trial 21 judge fails to apply the correct legal standard, such as when 'the trial court erred by

2021Id. (finding "that the court erred in its application of the law by failing to consider all of the mandated factors in determining the alimony issue"); Canakaris, 382 So. 2d at 1202 ("In order to properly review orders of the trial judge, appellate courts must recognize the distinction between an incorrect application of an existing rule of law and an abuse of discretion."); Nichols v. Nichols, 907 So. 2d 620, 622 (Fla. 4th DCA 2005) ("[A]n abuse of discretion standard is not appropriate where the trial 21 judge fails to apply the correct legal standard, such as when 'the trial court erred by

2021Id. (finding "that the court erred in its application of the law by failing to consider all of the mandated factors in determining the alimony issue"); Canakaris, 382 So. 2d at 1202 ("In order to properly review orders of the trial judge, appellate courts must recognize the distinction between an incorrect application of an existing rule of law and an abuse of discretion."); Nichols v. Nichols, 907 So. 2d 620, 622 (Fla. 4th DCA 2005) ("[A]n abuse of discretion standard is not appropriate where the trial 21 judge fails to apply the correct legal standard, such as when 'the trial court erred by

2014The plurality asserts that Warren v. State Farm Mutual Automobile Insurance Co., 899 So.2d 1090, 1095 (Fla.2005), stands for the proposition that the rational basis test envisions judicial consideration of the existing factors and circumstances to determine whether the legislative findings were fully supported.

2014The plurality asserts that Warren v. State Farm Mutual Automobile Insurance Co., 899 So. 2d 1090, 1095 (Fla. 2005), stands for the proposition that - 54 - the rational basis test envisions judicial consideration of the existing factors and circumstances to determine whether the legislative findings were fully supported.

2010An administrative agency is required to promulgate rules on “those statements which are intended by their own effect to create rights, or to require compliance, or otherwise to have the direct and consistent effect of law.” Agency for Health Care Admin. v. Custom Mobility, 995 So.2d 984, 986 (Fla. 1st DCA 2008) (quoting McDonald v. Dep’t of Banking & Fin., 346 So.2d 569, 581 (Fla. 1st DCA 1977)).

2008In Looney v. State, 803 So.2d 656, 676 (Fla.2001), we rejected a challenge to a statute governing the admissibility of victim impact evidence where it did not conflict with an existing rule of procedure, explaining: In the instant case, however, this Court had promulgated no rule or procedure governing the admissibility of victim impact evidence at the time of the Legislature's enactment (or at any time since).

2002See Swain v. Curry, 595 So.2d 168 (Fla. 1st DCA), rev. denied, 601 So.2d 551 (Fla.1992).

2001Id. at 269.