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.

Appendix, Please

The appendix requirement of Florida Rule of Appellate Procedure 9.220 is not just an afterthought, it’s a necessity. When you are asking the Court to review a non-final order, in particular, the appendix is essential: The appellate court is not sent the record, and is counting on the litigants to provide it with copies of the pleadings, transcripts, and other relevant documents that were before the trial court.

And if you don’t serve an appendix with your brief, as required by Rule 9.130(e)? The Third DCA will affirm the holding below. Reliance Property Management, Inc. v. Transportation Equipment Specialists, Inc., No. 3D09-411 (Feb. 24, 2010)[/pdf].

Appealing Confirmation of an Arbitration Award? No Rule, No Jurisdiction

The Third District Court of Appeal held (.pdf) it has no jurisdiction to review a trial court order confirming an arbitration award. What makes the case slightly interesting is that there is a provision of the Arbitration Code, Section 682.20, Fla. Stat., that purports to specifically allow such appeals. The Court joined its sister District, however, in holding that the statute doesn’t meet the jurisdictional requirements of the Florida Constitution, which holds that review of non final orders can be made only ‘the extent provided by rules adopted by the supreme court.’ Without a Florida Rule of Appellate Procedure, there is no jurisdiction.