Recently, the discussion of timeliness was addressed in Time is Critical (November 2018). For some reason, decisions regarding timeliness continue to make the news. In November, The Court of Appeals of North Carolina published Bradley v. Cumberland County and Key Risk, Case COA18-334 (2018). The outcome, described in detail in this 11-page decision, is the dismissal of the appeal.
Essentially, there was a dispute regarding workers' compensation benefits. A trial was held by a Deputy Commissioner, which is similar to the Florida Judge of Compensation Claims. A key difference is that the orders of a Deputy Commissioner are typically appealed to a state's "commission" or "commissioners" or "board." It is an administrative review process before reaching a constitutional court. North Carolina is in that model, and the trial judge's decision awarded the injured worker benefits.
The employer appealed that decision, which was reviewed by the "Full Commission." The Commission reversed part of the trial judge's order and affirmed part. Dissatisfied with that outcome, the injured worker sought review by The Court of Appeals. To this point, there is nothing exceptional about the case. That is, trial decisions and Commission reviews occur daily around the country (in Florida, appeals to the First District are the first appellate review for JCC decisions; In 2017 the First District handled 206 appellate filings regarding workers' compensation, about 4 per week).
The process engaged in North Carolina raised an issue though. The injured worker's attorney "printed the notice of appeal on his firm’s letterhead and addressed the notice to Commissioner Phillip A. Baddour, III of the Industrial Commission," and requested acknowledgment. The Court noted that "the notice indicated that it was filed with the Industrial Commission 'via Electronic Filing Portal.'” However, there was no indicia that the "Industrial Commission received Plaintiff’s notice of appeal," and if received when. This is a "filing" issue. The notice also "failed to state the court to which appeal was being taken." This is also a second "filing" issue.
Furthermore, the notice included a statement saying a copy was provided to the employer's attorney: “cc via email: Dayle Flammia, Counsel for Defendants." However, the notice did not " include a certificate of service in the record on appeal demonstrating how and when Plaintiff served opposing counsel with a copy of the notice of appeal." That is a "service" issue, apparently an absence of the "when" and to what particular address.
The Court of Appeals explained that a court must have "jurisdiction," that is authority, in order to hear a case. And that authority is dependent upon jurisdiction being “properly invoked by an interested party.” That invoking, it noted, is described in "both statute and our Rules of Appellate Procedure." Compliance with those procedures "is the linchpin that connects the appellate division with the trial division and confers upon the appellate court the authority to act in a particular case.” And when that procedure is not followed, the Court does not have authority and "cannot review the case on the merits." The failure to follow the rules, and document that process, is fatal to the review.
The Court explained the North Carolina Workers’ Compensation Act provides a right to appeal Industrial Commission cases and specifically references the "rules of appellate procedure." Those rules require the party filing the appeal to "demonstrate timely filing of a notice of appeal by including in the appellate record some form of acknowledgment from the Industrial Commission stating when the Commission received the notice of appeal." Asking for acknowledgment is not sufficient, the party seeking review must obtain and provide that acknowledgment.
The case was noteworthy because it addresses email service. The Court noted that "generally, service by email is not allowed." But, "parties can serve papers by email in one limited instance: for documents filed electronically to the North Carolina Appellate Courts’ electronic-filing site." And, as with workers' compensation appeals in Florida ("Jurisdiction of the court shall be invoked by filing a notice of appeal with the lower tribunal within 30 days of the date the lower tribunal sends to the parties the order to be reviewed"), the notice of appeal in North Carolina is filed with the "the court that entered judgment," not with the Court of Appeals.
Unlike Florida, North Carolina has not authorized electronic service of documents except when filing with the appellate court. The document in this case was not filed with the appellate court but with the Commission. Therefore, the use of electronic mail for the service of a notice of appeal is not appropriate in North Carolina. The use of email in that setting "is a technical violation of Rule 26 of the Appellate Rules." However, that "technical error" might be overlooked if "all parties clearly received notice and the error did not materially impede review." In this instance, there was no argument that the employer did not receive "actual notice" and therefore the use of email did not warrant dismissal of the appeal.
Unlike Florida, North Carolina has not authorized electronic service of documents except when filing with the appellate court. The document in this case was not filed with the appellate court but with the Commission. Therefore, the use of electronic mail for the service of a notice of appeal is not appropriate in North Carolina. The use of email in that setting "is a technical violation of Rule 26 of the Appellate Rules." However, that "technical error" might be overlooked if "all parties clearly received notice and the error did not materially impede review." In this instance, there was no argument that the employer did not receive "actual notice" and therefore the use of email did not warrant dismissal of the appeal.
The Court was able to similarly overlook the certificate issue. It noted that the procedural rules "require proof of service in the form of a certificate of service." The failure to include one "violates Appellate Rule 3," and that is "jurisdictional." However, as the failure in this case did not "constitute a 'substantial or gross violation of the Appellate Rules,' it does not necessitate dismissal." These two conclusions illustrate an oft-cited maxim that cases, generally, should be decided on their merits. Technical requirements of the law are frequently overlooked when the result is not demonstrably prejudicial to another party.
In a third example, the Court noted that the injured worker "neglected to designate in the notice of appeal the court to which the case was being appealed." That was noted as another technical error, but the Court noted that "a violation of this sort does not necessarily warrant dismissal of the appeal." While such an error could be fatal, the Court concluded that an appeal from the North Carolina Workers' Compensation Commission can only be in the Court of Appeals. As that is the only appellate path, the failure to so state in the notice did not result in the employer in this case being misled.
Therefore, of the four errors discussed, three (service by email, omission of the certificate of service, and failure "to designate the court to which appeal was being taken") were deemed not fatal to the appeal. However, the fourth error was. The Court noted, "there is no indication that Plaintiff’s notice of appeal was timely filed." The Court explained the "notice of appeal does not bear a time stamp, file stamp, or any other designation that the Industrial Commission received the notice of appeal." Though the attorney requested an acknowledgment when the notice was filed, the injured worker did not prove receipt.
The Court stated it would not "assume the notice of appeal was timely filed." Unlike the other errors, which could result in dismissal only if they had caused prejudice, the Court concluded that the timeliness issue was more absolute. As there was no proof of the timely filing, the Court concluded that the injured worker had not satisfied his burden of demonstrating The Court of Appeals jurisdiction. It was incumbent on the party seeking review to both follow rules and to demonstrate or prove having done so.
Similarly, the Florida First District has concluded that its jurisdiction may be invoked only by filing a notice of appeal within "30 days of the date the Judge of Compensation Claims mailed the final order to the parties." If the notice is not timely filed, then the "Court lacks jurisdiction and must dismiss the appeal." Troche v. BJ's Wholesale Club, Inc., 954 So. 2d 685 (Fla. 1st DCA 2007). There, the Court rejected an argument that this time (30 days) should begin to run when "counsel received the order," because that would be unworkable because the "courts would have no way of confirming when a party received an order." Thus, Troche reinforces the similarity of jurisdiction. But, it also illustrates the logic behind the North Carolina Court dismissal. That is, knowing when an act occurred.
In Florida, the notice of appeal would be filed with the "lower tribunal" ("Jurisdiction of the court shall be invoked by filing a notice of appeal with the lower tribunal within 30 days"; Rule 9.180(b)(3)). And, unlike the North Carolina Rules, the Rules of Procedure for Workers' Compensation Adjudication require all filings (except by unrepresented parties) to be electronically filed. Rule 60Q6.108(1). When documents are electronically filed in the Florida OJCC, they are imprinted with a date and time stamp such as:
And, if documents are delivered by hand or the U.S. Mail, they are date-stamped before they are uploaded to the case docket in the clerk's office, such as:
Thus, the timeliness may be determined to some extent (when the document was uploaded in example one, but only when someone actually date stamps it in example two). However, in the event one (unrepresented) would send a notice of appeal in hard copy, instead of electronically, there may be value in using Certified Mail or some other method that affords tracking of delivery (such as a parcel company).
There is value in being able to prove when a notice of appeal was filed. The Court will look to that party to demonstrate the Court's jurisdiction (or "authority"), which is dependent upon that timely-filed notice. In the Florida system, anyone filing a paper document in such circumstances should monitor the case docket to discern when the document was uploaded and more importantly what the date stamp reflects. And, in the event some error appears to occur, the party should thereafter promptly file any evidence to the contrary (certified mail or parcel company indication of OJCC receipt on some date prior to the date stamped on the uploaded document).
The Bradley analysis is a cautionary tale. Multiple errors are illustrated, and despite several of them, the Court was able to be forgiving and lenient. Those technical errors might nonetheless have been fatal in different circumstances (actual prejudice to the employer). But, the appellant was lucky regarding three errors. The cautionary tale is that rules should be followed, and thoroughness should be paramount. A party seeking review of a decision should rely on competence and completeness rather than luck and lack of prejudice. The rules are a critical path to success, which the appellant learned the hard way in Bradley.
There is value in being able to prove when a notice of appeal was filed. The Court will look to that party to demonstrate the Court's jurisdiction (or "authority"), which is dependent upon that timely-filed notice. In the Florida system, anyone filing a paper document in such circumstances should monitor the case docket to discern when the document was uploaded and more importantly what the date stamp reflects. And, in the event some error appears to occur, the party should thereafter promptly file any evidence to the contrary (certified mail or parcel company indication of OJCC receipt on some date prior to the date stamped on the uploaded document).
The Bradley analysis is a cautionary tale. Multiple errors are illustrated, and despite several of them, the Court was able to be forgiving and lenient. Those technical errors might nonetheless have been fatal in different circumstances (actual prejudice to the employer). But, the appellant was lucky regarding three errors. The cautionary tale is that rules should be followed, and thoroughness should be paramount. A party seeking review of a decision should rely on competence and completeness rather than luck and lack of prejudice. The rules are a critical path to success, which the appellant learned the hard way in Bradley.