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

/0 Comments/in , , , , /by

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.

Justice Canaday Will Be New Chief Justice

/0 Comments/in /by

The Florida Supreme Court has unanimously elected Justice Charles T. Canaday to succeed Peggy Quince as Chief Justice of the Florida Supreme Court. The Court in a press release [.pdf]explained that Canady will become Florida’s 54th Chief Justice since statehood, and his two-year term will begin July 1. Canaday made his way to the Supreme Court via the Second District Court of Appeal, after serving both in the Florida House and the U.S. Congress. Congratulations Justice Canaday!

Electronic Filing in the District Courts of Appeal

/0 Comments/in /by

All five of Florida’s intermediate appellate courts have a standing administrative order requiring electronic fiiling of briefs — and sometimes other documents. All of the courts require, at the very least, e-mailing of finalized briefs. The First DCA is leading the charge into electronic filing with its eDCA Portal. This is what I like to call a “hidden rule” — these rules are not in the official Florida Rules of Appellate Procedure, so they are an easy trap for those new to appellate practice in Florida. Here are each of the current standing orders — all links are .pdfs.

First District Court of Appeal: Administrative Order 09-3 In re Electronic Filing of Briefs
Second District Court of Appeal: Clerk’s Notice re efiling
Third District Court of Appeal: Administrative Order re: Electronic Filing AO3D05-1
Fourth District Court of Appeal: Administrative Order Re: Electronic Filing (Amended Feb. 1, 2006)
Fifth District Court of Appeal: Administrative Order 5D08-01