Backlogged Clerk’s Office Doesn’t (Necessarily) Thwart Appeal

If you send a notice of appeal to the trial clerk, and they don’t stamp it, is it timely? It may be in the Fifth District, if you can prove that you got it to the clerk on time.

In Ocr-EDS, Inc. v. S & S Enter., Inc., No. 5D09-4330 (March 12, 2010)[.pdf], the Appellant’s Attorney’s secretary swore that she sent the notice of appeal to the Seminole County Clerk of Court via Fedex next day delivery on November 19, and the certificate of service reflected that date as well. She testified by affidavit that she called the clerk’s office to confirm the Notice had been received, and was told it was, it would not be processed for a week, but that the correct date would be on it. A staffer in the clerk’s office testified by affidavit to the authenticity of her signature on the FedEx receipt and that she actually did receive the FedEx package on November 20, which would have been timely. But the notice was not stamped by the clerk’s office until after that date, and so the Appellee filed a motion to dismiss for lack of jurisdiction.

What I find fascinating about this case is the difference of approach between the Fifth DCA and the Fourth in dealing with this issue of late. The Fourth DCA ruled that Fla. R. Civ. P. 1.080(e), which was added in 1984, means that the clerk’s stamp is conclusive of the date of filing of a document. Employing the tenet of statutory interpretation that like statutes should be read in pari materia, the Fifth DCA explained that the trial court has the power to correct clerical mistakes in judgements and “other parts of the record” pursuant to Rule 1.540(a). Dubbing an erroneous time stamp to be “clearly a clerical mistake,” the Court remanded for an evidentiary hearing before the trial court to allow that court the opportunity to determine whether there had been a clerical mistake, and if so, to correct the error. The Court concluded that “A rule that would deny a citizen who has timely sought an appeal his or her
right to appeal based upon a proven mistake by a clerk’s office employee is not
consistent with justice or due process.”

Keep in eye on this issue. With clerk’s offices state wide clearly backlogged, and conflict already certified, it is going to make it’s way up to the Florida Supreme Court sooner rather than later.

Update: These parties have asked the Florida Supreme Court to take up the issue. Keep an eye on Docket No. SC10-849.