Read the Rules, It is Critical

Timeliness is an issue worthy of attention. In October, the Florida First District Court of Appeal (DCA) decided Matheny, v. Indian River Fire Rescue. An employer prevailed at trial and the injured worker filed an appeal. The Court concluded that the appeal was not timely.

This was a specific kind of appeal, called an “extraordinary writ,” the title is “petition for writ of certiorari.” Appellate rule 9.100(c) “requires such a petition to be filed within thirty days after rendition of the order to be reviewed.” The attorney did not file the petition within thirty days. It was filed on the 31st day.

The DCA explained that “the filing deadline set forth in Rule 9.100(c) is jurisdictional” which means that when the rule is not satisfied, the court does not have the authority, or “jurisdiction” to hear the appeal. This means also that there is no discretion, it is a matter of counting the days, and the filing is timely or it is not.

Early in the appellate consideration of the case, the Court essentially asked the injured worker how the appeal could be seen as timely. Courts ask questions with what is called an "order to show cause.” Lawyers sometimes do not like these orders, as they seem to imply something has been done wrong; but, they are really just asking a question. They are an efficient way for the court or a judge to inquire and to better understand something.

The injured worker explained that in his opinion the petition was timely on the thirty-first day because there is another rule, not in the appellate rules, in what are called the Florida Rule of Judicial Administration (RJA). Those rules say that “when a party may or must act within a specified time after service and service is made by mail or e-mail, 5 days are added after the period that would otherwise expire . . . .” This rule, and other like it, had evolved over the years to account for the fact that the U.S. Mail could and often did take a significant amount of time to move an envelope across the state.

But the DCA explained the RJA rule does not apply in this circumstance because it specifically says that the five additional days are afforded by the RJA when “another rule, a court order, or a  statute requires a party to act within a specified time after service.” When lawyers use “service” that essentially means when a document is sent (“served”) to the others involved in a case.  But, the DCA noted that the rule of appellate procedure (Rule 9.100(c)) does not require the petition (appeal) within thirty days of “service,” it requires the petition “to be filed within thirty days after “’rendition of the order to be reviewed.’”

Since the “extra five days” in Rule 2.514(b) applies to rules that relate to "service," and since the rule governing this appeal had a deadline related to “rendition,” the deadline was thirty days, not thirty-five. Because 9.100 does not rely on "service" and since 2.514 expressly does rely on "service."

Lawyers like order, predictability, consistency. Distinctions require more analysis and thought. Likely to avoid needing to analyze, the RJA rule makes no distinction between when documents are mailed in paper form, loaded on trucks and driven across the continent and when documents are transmitted instantly across the Internet.

The Florida Rules of Procedure for Workers’ Compensation Adjudication do recognize a distinction. In Rule 60Q6.108(6), the workers’ comp rules recognize that electronic mail is instantaneous. The rule says

(6) When service of any pleading other than a petition is made by U.S. mail, five days shall be added after the period allowed for the performance of any act required to be done, or allowed to be done, within a certain time after service. When service is made by any electronic delivery method or by hand delivery, no additional time shall be added.

So, it is important to know which rules are applicable. In some instances, it is the adjudication rules (for proceedings before the Judge). In other instances, the appellate rules (for proceedings before the DCA or the Supreme Court) apply. Then, it is important to read the rules and know whether “service” or “rendition” is the controlling event. Which rules apply when, and how they may interact is important. 

As a side note, the RJA do not apply to proceedings before a judge of compensation claims because we are not part of the judiciary. The OJCC is a part of the Executive Branch of the government. 

Of course, the easy course is to never wait until the deadline to turn in your work. If it is due in thirty days, turn it in in 25. If you end up a day late then, because of a delay in the postal service, then it arrives on day 26 and it is still on time.  Of course it is hard to meet deadlines, and we are all busy with a multitude of tasks and responsibilities. So in the end, read the rules, it is critical.