Roadrunner Construction, Inc. v. Department of Financial Services, Division of Workers' Compensation

33 So. 3d 78, 2010 Fla. App. LEXIS 3849, 2010 WL 1077092
CourtDistrict Court of Appeal of Florida
DecidedMarch 25, 2010
Docket1D09-6551
StatusPublished

This text of 33 So. 3d 78 (Roadrunner Construction, Inc. v. Department of Financial Services, Division of Workers' Compensation) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Roadrunner Construction, Inc. v. Department of Financial Services, Division of Workers' Compensation, 33 So. 3d 78, 2010 Fla. App. LEXIS 3849, 2010 WL 1077092 (Fla. Ct. App. 2010).

Opinions

PADOYANO, J.

This is an appeal from a final administrative order. Both the original notice of appeal submitted to the agency clerk and the duplicate copy of the notice submitted to the clerk of this court were untimely. Because the appellant has failed to invoke the jurisdiction of the court, the appeal must be dismissed.

The Department of Financial Services ordered Roadrunner Construction, Inc., to pay $667,000.00 into the Workers’ Compensation Administrative Trust Fund as a penalty for failing to comply with an earlier order. The Department’s final order was rendered on November 24, 2009. Roadrunner filed the original of its notice of appeal with the agency clerk on Monday, December 28, 2009, and transmitted the duplicate copy of the notice to the clerk of the First District Court of Appeal by mail. The duplicate copy was filed when it was received on Tuesday, December 29, 2009.

The Department moved to dismiss the appeal, contending that the last day to file the notice was Thursday, December 24, 2009, a day that was not identified as an official holiday under rule 9.420(f) of the Florida Rules of Appellate Procedure. In response, Roadrunner argued that the last day should not be included in the calculation, because the office of the clerk of the First District Court of Appeal was closed on that day. Roadrunner also pointed out that although December 24, 2009, was not listed in rule 9.420(f) as an official holiday, many of the other court clerk offices around the state were closed. However, Roadrunner could not establish that the office of the agency clerk for the Department of Financial Services, was closed on December 24, 2009. We have subsequently verified that-the agency clerk’s office was open for business on that day.

Article V, section 2(a) of the Florida Constitution provides that the supreme court shall have exclusive authority to set the time limits for invoking appellate jurisdiction. Section 59.081, Florida Statutes (2009), implements this authority. By the terms of the statute, failure to initiate an appellate proceeding within the time set by the supreme court divests the appellate court of jurisdiction. These principles of law require the Florida appellate courts to dismiss an appeal for lack of jurisdiction if it was not initiated within the applicable time limit. See State ex rel. Cantera v. District Court of Appeal, Third District, 555 So.2d 860 (Fla.1990); Miami-Dade County v. Peart, 843 So.2d 363 (Fla. 3d DCA 2003); Mekertin v. Winn Dixie Stores, Inc., 869 So.2d 1286 (Fla. 4th DCA 2004).

The supreme court established the jurisdictional time limit for initiating an appeal from a final administrative order by adopting rule 9.110(c). This rule states that “the appellant shall file the original notice with the clerk of the lower administrative tribunal within 30 days of rendition of the order to be reviewed, and file a copy of the notice, accompanied by any filing fees prescribed by law, with the clerk of the court.”

The term “court” is used in the appellate rules to mean the appellate court: that is, the court to which the proceeding is directed. See Fla. R.App. P. 9.020(c); American Medical Int’l, Inc. v. Scheller, 484 [80]*80So.2d 593 (Fla. 4th DCA 1985). To avoid confusion, the court or tribunal from which the appeal has been taken is referred to in the appellate rules as the “lower tribunal.” See Fla. R.App. P. 9.020(e). The terms “court” and “lower tribunal” are mutually exclusive in that they each have only one meaning in an appellate proceeding. In contrast, the term “clerk” could mean the clerk of the lower tribunal or the clerk of the appellate court depending on the context in which the term is used. Rule 9.020(b) defines the term “clerk” as “[t]he person or official specifically designated as such for the court or lower tribunal.”

These definitions remove any possible ambiguity that might otherwise exist in rule 9.110(c). According to the text of the rule, the original of the notice of appeal is to be filed with “the clerk of the lower administrative tribunal” within thirty days of the date of rendition of the order. This could only mean the agency clerk — in this case, the clerk for the Department, of Financial Services. The appellant is also directed to file a duplicate copy of the notice with the “clerk of the court.” This could only mean the clerk of the appellate court — in this case the clerk of the First District Court of Appeal.

To invoke the jurisdiction of this court, the appellant would have been required to file the original notice of appeal with the agency clerk within thirty days of the date of rendition. See Bank of Port St. Joe v. Dep’t of Banking and Finance, 362 So.2d 96 (Fla. 1st DCA 1978). Rule 9.420(f) provides that in computing any time period under the appellate rules, the day of the act or event is not included, but the last day is included, unless the last day is a Saturday, Sunday or a legal holiday, in which case the last day is the next day that is not a Saturday, Sunday or legal holiday. The rule then contains a list of the designated holidays and it includes at the end of the list a provision that defines the term “holiday” as “any other day when the clerk’s office is closed.”

According to the calendar, the last day to file the notice of appeal in the present case would have been Thursday, December 24, 2009. If that day had been a holiday, the appellant would have had until Monday, December 28, 2009, the next day that was not a Saturday, Sunday or legal holiday. But December 24, 2009, was not a holiday. It is not listed as an official holiday, and the office of the clerk of the lower administrative tribunal was not closed on that day.

The only way that we could hold that this court has jurisdiction is if we were to conclude that the appellant had an extra day to file the notice of appeal in the lower tribunal because the clerk of this court was closed on the last day. That would make little sense, given the fact that the notice was to be filed in the lower tribunal, not in this court. Because the clerk of the lower tribunal was open for business on the last calendar day, the notice of appeal could have been filed there on that day. It makes no difference that the clerk of the First District Court of Appeal was closed.1

We have acknowledged that the term “clerk” as defined in rule 9.020(b) could refer to the clerk of the lower tribunal or the clerk of the appellate court, but there can be no doubt about the meaning of the [81]*81term as it is used in rule 9.420(f). The word “clerk” in the phrase “any other day in which the clerk’s office is closed” is plainly a reference to the clerk in the office where the document at issue is to be filed. As the rale is applied to this case, the term “clerk” means the office of the clerk of the lower tribunal, the place where the notice of appeal was to be filed.

The appellant would have us carry the jurisdictional time period forward to the next business day if either the clerk’s office of the lower tribunal or the clerk’s office of the appellate court is closed on the last calendar day, but that would not be a reasonable interpretation of rule 9.420(f). The point of allowing additional time if the clerk’s office is closed on the last calendar day is to ensure that the appellant has the full thirty days to file the notice of appeal. If the clerk’s office where the notice of appeal is to be filed is open on the last calendar day, the notice can be filed there on that day.

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Cite This Page — Counsel Stack

Bluebook (online)
33 So. 3d 78, 2010 Fla. App. LEXIS 3849, 2010 WL 1077092, Counsel Stack Legal Research, https://law.counselstack.com/opinion/roadrunner-construction-inc-v-department-of-financial-services-division-fladistctapp-2010.