"it's jurisdictional" will never rival "it's electric" (Marcia Griffith, 1976). But what a great song it might make.
A few months back, 1,500 months that is, the Florida Supreme Court explained the operation of Chapter 4528, enacted in 1897. Chamberlin v. Finley, 40 Fla. 91, 23 So. 559 (1898). The point of the law, and the Court's interpretation, is that there would be structure to appellate actions in Florida courts. The Court explained that "the entry of appeal is jurisdictional, and is absolutely indispensable." One cannot appeal a trial decision with silence or subtlety.
From that historical foundation, comes a parade of decisions in which various courts have explained the jurisdictional nature of the "notice of appeal."
Perhaps the first such explanation in the wide, wide, world of workers' compensation occurred a few days back, 28,600 days back that is, in City of Miami v. Saco, 24 So. 2d 115 (1945). There, the Court explained that workers' compensation is a statutory creation. The statute provides for adjudication by a state agency, and any entitlement to appeal the decision of such an agency "exists solely by virtue of the statutes creating and defining the powers of this state agency."
There is, in this, clarity. The answers to many questions, it seems, are there in the statute for anyone to read. Section 440.25(5)(a) notes that:
"Procedures with respect to appeals from orders of judges of compensation claims shall be governed by rules adopted by the Supreme Court. Such an order shall become final 30 days after mailing of copies of such order to the parties, unless appealed pursuant to such rules."
There are those who would read that and immediately believe that there is a stringent deadline of 30 days. The language seems reasonably certain and conclusory. That said, the history of Florida workers' compensation is littered with a multitude of appellate decisions that dodged, deflected, or ignored various deadlines imposed by the legislature. There are some who feel the appellate court's record on the subject of deadlines begs explanation. Others strive to explain those deflections academically with little success.
Returning to Saco, however, the Florida Supreme Court noted that there was no "right of review or appeal by the courts" by any "constitutional right." Instead, "such right of review...is a statutory privilege." Thus, it "is subject to the limitations, conditions, and restrictions imposed by the statutes which define and create the privilege."
That 30 days, at least under the parade of analyses, appears to be "jurisdictional." The parade includes such intriguing analyses as Thompson v. Park Place of Venice, Inc., 888 So. 2d 47 (Fla. 1st DCA 2003) and Troche v. BJ's Wholesale Club, Inc., 954 So. 2d 685 (Fla. 1st DCA 2007). These each illustrate and explain the 30 days. Troche is particularly good reading.
Some might argue that how absolute the 30 days is depends on the appellate court panel that is charged with a particular review or appeal. Certainly, a panel might return to the statute and defer on those prior court decisions. But, at least for the present, that 30-day deadline seems singularly important and likely absolute. When a "final adjudication" is made, a "final" order is entered, an aggrieved party may seek review. But, that must be instigated within 30 days of the order being sent.
This is a matter of statutory law (above), but for good measure, the Supreme Court has provided Rules of Appellate Procedure, which echo the "30 days," in addressing "commencement":
"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 either by mail or by electronic means approved by the deputy chief judge, which date shall be the date of rendition." Rule of Appellate Procedure 9.180(b)(3).
One might quibble with whether the Rule has any necessity or meaning in a statutory system. But, as the two formulae are seemingly congruent, 30 days is the apparent deadline. That is from the date the trial judge mails or transmits the order. It matters not when the parties receive it. It matters only when it was sent.
Of interest, though, the rule is not afforded strict enforcement in other regards. The Court's rule says "with the lower tribunal," but the appellate court has concluded that language is meaningless and a notice is effective whether filed with the lower tribunal or with the appellate court directly. Dayan v. H.I. Dev./Holiday Inn, 710 So. 2d 187, 188 (Fla. 1st DCA 1998). Part of the rule is absolute, other parts are relative.
The time for a party to consider the efficacy of an appeal is immediately. The deadline is short. In many instances parties might be well-served to discuss and consider appellate process in a "what if" approach even before the trial order is entered. This is particularly true if the party will be paying the costs of a record, appellate filing costs, and attorney fees. Appeals can be expensive. That said, when an appeal has not been contemplated before trial, it should be an immediate discussion after. Time is short, and 30 days is not as extensive as it might sound.
The good news is that a notice of appeal can now be filed without printers, envelopes, post offices, trucks, and such. The notice can be electronically filed. The filing fee can be easily transferred electronically. The process is simpler than it was twenty years ago. Of note here, the filing fee is not. Williams v. State, 324 So. 2d 74, 77 (Fla. 1975). Perhaps that is because there is no fee mentioned in the statute? Or because a party might instead seek relief from that fee on the grounds of indigency?
Despite this, we continue to see tardy notices of appeal. Some delay because a Motion for Rehearing was filed. Some confuse civil practice and procedure with the Chapter 60Q rules, which in 60Q6.122(3) provide:
(3) A motion for re-hearing does not toll the time within which an order becomes final or an appeal may be filed.
Thus, the clock is ticking. If the 30-day deadline looms, one cannot be distracted by a lingering Motion for Rehearing. And, if a motion for rehearing is denied, the time to file an appeal still runs from the mailing of the trial order that the judge entered (not from the denial of rehearing).
It may be particularly difficult to explain this to a client. The lawyer filing the notice of appeal has signaled, reasonably clearly, a significant belief of error by the trial tribunal. By doing so late, the lawyer has failed to protect the client's interest in having that error reviewed. Some would suggest that when the dismissal is received from the appellate court it is time to notify the malpractice carrier and client.
Marcia Griffith might sing:"You can't see itIt's jurisdictional!
You gotta feel it
It's jurisdictional!
Ooooh, it's shocking
It's jurisdictional!"
