The right to relief: untimely notice of an appealable order.

• Author: Giddings, Katherine E.
• Position: Florida

The right to appeal is fundamental to Florida's judicial system. (1) However, this right has carefully circumscribed limits. Failure to appeal within 30 days of an order's rendition results in an incurable jurisdictional defect. (2) Timely notice of an order facilitates the ability to appeal. What if a party --through no fault of its own--fails to obtain notice of an order until shortly before, or even after, the time to appeal has expired? This can--and does--happen for a number of reasons, such as failure to transmit an order, failure to deliver an order, or delivery of an order to the wrong address. (3)

The Florida Rules of Appellate Procedure do not address the dilemma caused by lack of timely notice of an appealable order, but familiarity with how to proceed is critical if a practitioner wants to preserve a client's right to appeal. As will be discussed in this article, the remedy applied by civil courts is relatively straightforward. The solution in the administrative arena is more tenuous. This article addresses the current state of the law in this area in both civil and administrative cases. It further proposes a solution to solidify the proper procedure in administrative proceedings in the event of untimely notice of an appealable agency order.

Remedy for an Untimely Notice of an Appealable Order in the Civil Context

In the civil context, courts have remedied the problem of untimely notice (4) of an appealable order through application of Florida Rule of Civil Procedure 1.540(b). (5) Rule 1.540(b) (1) provides a clear path to relief. It permits a court "on motion and upon such terms as are just" to vacate an order due to "mistake, inadvertence, surprise, or excusable neglect." (6)

The "type of mistake envisioned by [R]ule 1.540(b) is the type of honest and inadvertent mistake made in the ordinary course of litigation, usually by the [e]ourt itself, and is generally for the purpose of setting the record straight." (7) The process involves filing a motion to vacate in the trial court. If the facts are disputed, then the trial court usually conducts an evidentiary hearing on the motion as to whether relief should be granted. (8) After setting aside an improperly noticed order under Rule 1.540(b)(1), a court may re-enter the order to facilitate a timely appeal. (9) Courts have recognized the critical nature of providing such relief, especially given that failure to provide proper notice of an appealable order may raise due process concerns. (10) As emphasized by the Second District Court of Appeal in Boelter v. Boelter, 39 So. 3d 1282, 1284 (Fla. 2d DCA 2010), "the failure to properly notice a party of a ruling may adversely affect that party's right to due process."

Remedy for an Untimely Notice of an Appealable Order in the Administrative Context

In the administrative realm, the legal landscape is more obscure. Rule 1.540(b) does not apply to administrative actions, meaning it cannot be used to provide relief to a party who did not have timely notice of an appealable administrative order. (11) Moreover, F.S. [section]120.68, the statute governing administrative appeals, does not address untimely notice of an appealable order. (12) Section 120.68(2) (a) simply mirrors the requirements in the Florida Rules of Appellate Procedure and provides: "All proceedings shall be instituted by filing a notice of appeal or petition for review in accordance with the Florida Rules of Appellate Procedure within 30 days after the rendition of the order being appealed." (13)

Courts have sought to address the lack of any governing rule in the administrative context by holding that agencies have the inherent authority to vacate, and then re-enter, an order to permit a timely appeal in the event some circumstance beyond the party's control prohibited appeal. (14) For example, in W. T. Holding, Inc. v. State, Agency for Health Care Administration, 682 So. 2d 1224 (Fla. 4th DCA 1996), the appellant asserted it did not receive a copy of the agency's final order until after the time to appeal expired. The Fourth District Court of Appeal held "the administrative agency does have the authority to reissue a final order despite the lack of a specific grant of such authority in [ChJ 120." (15) The court reversed the final agency order and remanded "with instructions that the [agency conduct an evidentiary hearing on the issue of whether appellant received a copy of the final order and/or had other notice of entry of the agency's final order." (16) The First District Court of Appeal in Adams v. Florida Unemployment Appeals Commission, 16 So. 3d 272 (Fla. 1st DCA 2009), made a similar determination: "in light of appellant's allegation that she did not timely receive notice of entry of the agency's final order, this disposition is without prejudice to appellant's right to petition the agency to vacate and re-enter that order."

Likewise, the Florida Supreme Court has held that an agency has the inherent power to correct its orders that contain clerical errors and errors arising from mistake or inadvertence. (17) As explained by the court in Taylor v. Department of Professional Regulation, 520 So. 2d 557, 560 (Fla. 1988), "an administrative tribunal, exercising quasi-judicial powers, enjoys the inherent authority to correct its own orders which contain clerical errors and errors arising from mistake or inadvertence." The Florida Supreme Court in Millinger v. Broward County Mental Health Division & Risk Management, 672 So. 2d 24, 27 (Fla. 1996), also found "egregious" circumstances precluding a timely appeal could exist that merit remedy by an agency. (18)

This judicially-crafted approach, however, creates a narrow exception to general agency law, which strictly limits an agency's authority to that...