Welcome to the Hotel St. Moritz: A Warning Concerning the Window in Which to Seek Appellate Review of Corrected, Amended, or Modified Orders.

• Author: Lyman, Chance
• Position: Appellate Practice

Don Henley may have warned us about the Hotel California, but if you miss the deadline to seek review of an adverse decision, you may find yourself in a not-so-lovely place. The party on the receiving end of such decision faces a significant choice: to appeal or not to appeal. This is a choice comprising considerations too numerous to list, any of which could warrant its own in-depth discussion in this journal. This article falls on the opposite side of the spectrum, addressing only a discrete and, in this case, somewhat obscure procedural issue: the time in which to appeal. More specifically, the time in which to appeal from orders that have been corrected, amended, or modified.

Most litigators know that, in general, they have 30 days to appeal from final (and certain types of nonfinal) orders. But with adverse orders that have been corrected, amended, or modified, the time in which to seek appellate review is not always simple or obvious. For the appellate specialist, whether to seek appellate review is often the first decision on which he or she can consult. Indeed, trial specialists may not consult an appellate specialist until faced with an adverse order. But if the attorney litigating the proceedings in the lower tribunal is unaware of the nuances of this general, 30-day rule, the time in which to decide whether to appeal can expire, permanently extinguishing the right to meaningful appellate review. This article provides a useful guide on computing the time to seek appellate review for trial and appellate specialists alike who face adverse rulings that have been corrected, amended, or modified.

What Is the Rule Applicable to Amended Orders and Where Did it Come From?

In general, a party facing an appealable adverse decision has 30 days to seek appellate review. (1) This 30-day clock ticks from the date the adverse decision is rendered, meaning the date the signed order is filed (not recorded) (2) with the clerk. (3) This general rule seems straightforward enough and can be confirmed by briefly consulting the Florida Rules of Appellate Procedure. But what about a decision modified by the lower tribunal before a party invokes the jurisdiction of the appellate court? By only briefly consulting the appellate rules, one might assume that the 30-day clock simply runs anew from the date the modified order is rendered. As with many assumptions, however, this is not always accurate, and a party who makes such an assumption risks dire consequences.

In St. Moritz Hotel v. Daughtry, 249 So. 2d 27, 28 (Fla. 1971), the Florida Supreme Court laid out the modern rule applicable to modified orders:

An amendment or modification of an order or judgment in an immaterial way does not toll the time within which review must be sought. But where the modification or amendment materially changes the original order or judgment, the limitation period is said to run from the time of such modification or amendment.

In other words, all amended orders are not created equal. The 30-day clock does not simply restart upon the entry of a modified order in every instance. Instead, some analysis as to the nature of the modification is necessary to determine the applicable window in which to seek appellate review.

The issue before the Florida Supreme Court in St. Moritz was whether a supplemental order entered by a judge of the Florida Industrial Relations Commission constituted a material change from the original order. (4) The original order awarded the claimant compensation "in the form of weekly payments for nursing services to be continued 'so long as such services are necessary,'" and awarded $9,500 in attorneys' fees. (5) The award of attorneys' fees "was based on present value of the nursing services (although he did not set a figure for the present value of the services), the time and preparation involved in the claim, the adequacy of the preparation, and the Dade County Bar Association schedule of minimum fees." (6)

Several days later, the judge "suasponte entered a supplemental order purporting to 'correct an error in computation or a scrivener's error' with respect to" the attorneys' fees award. (7) Specifically, the judge reset the award to $8,311.80 based on a finding that "the parties had stipulated that any award of attorney's fees should be in the sum of 30 [percent] of the benefits recovered and that the present value of such benefits was $27,706.05." (8)

St. Moritz Hotel, the claimant's employer, attempted to seek appellate review of the decision. (9) The hotel's application for review was timely as to the supplemental order but not as to the original. (10) The full commission dismissed the application as untimely reasoning that the time in which to seek review ran from entry of the original order because the supplemental order did not go to the merits of the dispute. (11)

The Florida Supreme Court quashed the order dismissing the hotel's application for review. (12) Although the Supreme Court took no issue with the statement of law relied on by the full commission, it found that the supplemental order did materially change the order. (13) The Supreme Court explained that the supplemental order contained two significant changes: "(1) [I]t made a new award of attorney's fees computed in a substantially different manner from the award in the first order; and (2) it stated for the first time the present value of the benefits to claimant." (14) The court considered these significant because the hotel's challenge to the order concerned the value of the benefits awarded--a figure that could not have been challenged based on the first order alone, which awarded...