The Right to Relief: Untimely Notice of an Appealable Order
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 notice4 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 [c]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. §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 [Ch.] 120.”15 The court reversed the final agency order and remanded “with instructions that the [a]gency 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 conferred by the legislature through statute.19 Because agencies are creatures of statute, and because the courts have cautioned that the remedy is extremely limited, a statutory provision would bolster an agency’s power to act under these circumstances, serve to protect the due process rights of parties seeking appeal of agency orders, and provide greater consistency in the process.20
The Attempted Legislative Remedy
Members of the Florida Legislature have recognized the problem of untimely notice of an appealable order in the administrative context and have repeatedly attempted to address the issue.21 The staff analyses of the relevant bills proposed over the last three years explicitly identify failure to receive timely notice of an agency order as a problem meriting attention.22 Most recently, the legislature passed CS/CS/CS/HB 435, which sought to amend §120.68(2)(b) to state: “If a party receives notice of the filing of the order later than the 25th day after the filing of the order with the agency clerk, the time by which the party must file a notice of appeal or petition for review is extended for 10 days after the date that the party received the notice of the filing of the order.” 23 Accordingly, this amendment endeavored to provide additional time to appeal if a party failed to learn of an appealable order in a timely manner.
The governor ultimately vetoed CS/CS/CS/HB 435 on unrelated grounds, so this amendment did not become law.24 That appears to be a good thing because, although the attempt to remedy the problem is well-intended, the language of the amendment to §120.68(2)(b) likely would have created more problems than it solved. The amendment did not provide guidance regarding how to determine when a party “received” the notice of filing of the order — determining receipt likely would have produced significant additional litigation. Generally, a rebuttable presumption of receipt is created upon transmission, but this presumption is just that — rebuttable.25 The fact that a general presumption exists does not mean the presumption would apply in this context, especially given that the proposed legislature explicitly tied “receipt” to actual receipt by the party.
Numerous situations also could arise that would have the potential to cloud the issue of receipt, as well as the meaning of “receipt” in the context of the proposed legislation. For example, what if an order is mailed and delivered but the party fails to obtain it from the mailbox for some innocent — or nefarious — reason? Additionally, the proposed amendment only applied to the “notice of the filing of the order.” What if a party somehow had knowledge of the order’s filing but not the order itself, leading to uncertainty regarding the substance of the order? A party may not know whether it has an adverse ruling to appeal based solely on the “notice of the filing of the order,” making the additional time to appeal effectively meaningless.
Moreover, no standard or evidentiary process is incorporated into the proposed legislation. Who determines when the order was received? Who carries the burden in establishing that the order was or was not received? What testimony or evidence is required to establish when the order was received?
In addition to the potential confusion created by the language of CS/CS/CS/HB 435, any action taken by the legislature in modifying the time to appeal raises constitutional concerns. While the legislature has the power to delegate authority to administrative agencies and enact legislation governing those agencies,26 the Florida Supreme Court has the exclusive authority to adopt rules for practice and procedure — expressly including the time to seek appellate review — in all Florida courts.27 The Florida Rules of Appellate Procedure promulgated by the Florida Supreme Court provide a party 30 days from an order’s rendition28 to appeal.29 Relative to the courts, the legislature only is authorized to enact laws that are substantive30 — i.e., laws that “prescribe duties and rights.”31
A statutory amendment modifying the time to appeal, such as that in CS/CS/CS/HB 435, appears to be procedural because it would involve the “manner” or “means” through which a party enforces the substantive right to appeal.32 Although we recognize the legislature may create agencies and delegate certain authority to them, a procedural enactment by the legislature — especially one that conflicts with the Florida Rules of Appellate Procedure — could violate separation of powers and be unconstitutional. An unconstitutional statutory amendment would be invalid, absent adoption of the amendment by the Florida Supreme Court.
A Potential Remedy in the Administrative Context
Because Rule 1.540 does not apply to administrative proceedings, a reasonable solution would be to amend §120.68 to codify the caselaw addressing an agency’s inherent authority to vacate an order.33 As noted above, Florida courts have held that agencies have inherent authority to vacate their own orders under some limited circumstances. Specifically, the Florida Supreme Court has found that an agency has the inherent authority to correct its orders that contain clerical errors and errors arising from mistake or inadvertence.34 It also has concluded “egregious” circumstances preventing a timely appeal could exist that warrant remedy by an agency.35 An example of an egregious circumstance is when an entered order is “never actually provided to the litigants” because it would raise due process issues.36
An amendment codifying and confirming these principles could be added as F.S. §120.68(11), and state:
An agency has authority to correct its own orders that contain clerical errors and errors arising from mistake or inadvertence. An agency has authority to vacate a final order and issue a new final order where, following petition to the agency, the petitioner establishes egregious circumstances that prevented the petitioner from timely filing an appeal and the egregious circumstances were not the result of the petitioner’s own negligence.
Because agencies are creatures of statute and derive their authority therefrom, this codification would clarify and cement the power of agencies to vacate orders in limited circumstances. The amendment would also avoid interference with the Florida Supreme Court’s exclusive authority to establish rules governing practice and procedure because it would not alter the time to appeal or otherwise impact the jurisdiction of the appellate courts. Instead, the amendment would be substantive in nature. It would provide an agency with the express authority to remedy its orders in a limited manner outside of correcting them solely for purposes of facilitating an appeal — e.g., an agency also could correct clerical errors and errors from mistake or inadvertence.
The amendment would not provide for all of the bases of relief encompassed in Rule 1.540(b). But this suggested approach attempts to strike a reasonable balance between the need for administrative finality and the need for an agency to have authority to correct its own orders. To the extent a time limitation is necessary to further ensure finality, the amendment could include the following restriction similar to the one found in Rule 1.540(b): “A motion filed under this rule must be filed within a reasonable time.”
In applying the above-proposed §120.68(11) — as in applying Rule 1.540(b) as reflected in W.T. Holdings — an evidentiary hearing at the Florida Division of Administrative Hearings may be necessary to resolve any disputed facts surrounding the alleged need to vacate an order.37 An evidentiary hearing would aid in protection of the due process rights of the affected party while ensuring the party does not gain unwarranted additional time to appeal.
Parties in both civil and administrative tribunals should be afforded appropriate relief when the right to appeal is jeopardized through no fault of their own. The remedy in the civil context is firmly rooted in Rule 1.540(b). An analogue in administrative proceedings should be considered, especially in light of judicially-recognized due process concerns resulting from an impediment to appeal outside a party’s control. The addition of the aforementioned §120.68(11) may provide a reasonable solution in the administrative arena and could avoid the potential constitutional pitfalls involved with legislatively altering the time to appeal.
1 See Fla. Const., art. 5 §§3(b), 4(b), 5(b); see also Martin Cnty. Conservation Alliance v. Martin Cnty., 73 So. 3d 856, 872 (Fla. 1st DCA 2011) (Van Nortwick, J., dissenting) (“The Florida Supreme Court has recognized that the right to appeal an administrative order is implied by both the due process clause of [art.] I, [§]9, of the Florida Constitution, and the access to courts provision in [art.] I, [§]21.”).
2 Fla. R. App. P. 9.110(b); Fla. R. App. P. 9.130(b); State ex rel. Cantera v. Dist. Court of Appeal, Third Dist., 555 So. 2d 360, 362 (Fla. 1990) (“An appellate court cannot exercise jurisdiction over a cause where a notice of appeal has not been timely filed.”).
3 See, e.g., Boelter v. Boelter, 39 So. 3d 1282 (Fla. 2d DCA 2010) (failure to mail order); Johnson v. Terry Hunt Constr. Co., 878 So. 2d 1282 (Fla. 1st DCA 2004) (delivery of order to incorrect address); Fernandez v. Office of Fin. Regulation, 159 So. 3d 388 (Fla. 4th DCA 2015) (failure to receive order).
4 All orders “must be served in conformity with the requirements of Florida Rule of Judicial Administration 2.516.” Fla. R. Civ. P. 1.080(a).
5 See Boelter, 39 So. 3d at 1284 (holding lack of timely notice of ruling due to trial court’s mistake is grounds for relief from judgment under Rule 1.540(b)); Gibson v. Buice, 381 So. 2d 351 (Fla. 5th DCA 1980) (reversing and remanding for trial court to provide relief under Rule 1.540(b) to allow appellant timely appeal); Snelson v. Snelson, 440 So. 2d 477, 447 (Fla. 5th DCA 1983) (dismissing appeal and finding trial court may vacate order under Rule 1.540(b) and enter new order to allow timely appeal); Blastock v. Blastock, 776 So. 2d 359, 360-61 (Fla. 1st DCA 2001) (dismissing appeal without prejudice for party to obtain relief under Rule 1.540(b)).
6 Fla. R. Civ. P. 1.540(b)(1) (“On motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, decree, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect.”).
7 Boelter, 39 So. 3d at 1284 (internal quotations omitted).
8 Smith v. Smith, 903 So. 2d 1044, 1045 (Fla. 5th DCA 2005) (evidentiary hearing required on motion to vacate alleging failure to receive order until after expiration of time to appeal); Goudie v. Garcia, 584 So. 2d 100, 101 (Fla. 3d DCA 1991) (evidentiary hearing required to resolve disputed facts raised in motion to vacate); see also Schleger v. Stebelsky, 957 So. 2d 71, 72 (Fla. 4th DCA 2007) (“A motion for relief from judgment should not be summarily dismissed without an evidentiary hearing unless its allegations and accompanying affidavits fail to allege colorable entitlement to relief.”).
9 Gibson, 381 So. 2d at 351.
10 Boelter, 39 So. 3d at 1284; see also Millinger v. Broward Cnty. Mental Health Div. & Risk Mgmt., 672 So. 2d 24, 27 (Fla. 1996).
11 Id. at 26 (rejecting application of Rule 1.540 to administrative proceeding), disapproving New Wash. Heights Cmty. Dev. Conference v. Dep’t of Cmty. Affairs, 515 So. 2d 328 (Fla. 3d DCA 1987); Farrell v. Amica Mut. Ins. Co., 361 So. 2d 408, 411 (Fla. 1978) (same); Filarski v. Reemployment Assistance Appeals Comm’n, 97 So. 3d 278, 279 (Fla. 4th DCA 2012) (same).
12 Uniform Rule of Procedure 28-106.110 provides: “Unless the presiding officer otherwise orders, every pleading and every other paper filed in a proceeding, except applications for witness subpoenas, shall be served on each party or the party’s representative at the last address of record.”
13 Fla. Stat. §120.68(2)(a).
14 W.T. Holding, Inc. v. State Agency for Health Care Admin.. 682 So. 2d 1224 (Fla. 4th DCA 1996); Fernandez, 159 So. 3d at 389; Adams v. Fla. Unemp. Appeals Comm’n, 16 So. 3d 272 (Fla. 1st DCA 2009); Reyes v. Fla. Unemp. Appeals Comm’n, 12 So. 3d 1292 (Fla. 1st DCA 2009); see also Taylor v. Dep’t of Prof’l Regulation, 520 So. 2d 557, 560 (Fla. 1988) (agency has inherent authority to correct “clerical errors and errors arising from mistake or inadvertence in its own orders”).
15 W.T. Holding, 682 So. 2d at 1225.
16 Id. at 1226.
17 Taylor, 520 So. 2d at 560.
18 Millinger, 672 So. 2d at 27 (“We envision that there could be a set of egregious circumstances which occur that prevent a litigant from timely filing an appeal that could be remedied by the JCC or an appellate court.”).
19 W.T. Holding, Inc., 682 So. 2d at 1225 (“We. . . hold that here the administrative agency does have the authority to reissue a final order despite the lack of a specific grant of such authority in chapter 120.”); see also State of Fla. Dep’t of Envt’l Affairs v. Falls Chase Special Taxing Dist., 424 So. 2d 787, 793 (Fla. 1st DCA 1982) (“An agency has only such power as expressly or by necessary implication is granted by legislative enactment. An agency may not increase its own jurisdiction and, as a creature of statute, has no common law jurisdiction or inherent power such as might reside in, for example, a court of general jurisdiction.”).
20 See Martin Cnty. Conservation Alliance, 73 So. 3d at 872 (Van Nortwick, J., dissenting) (“The Florida Supreme Court has recognized that the right to appeal an administrative order is implied by both the due process clause of article I, section 9, of the Florida Constitution, and the access to courts provision in [art.] I, [§]21.”); Filarski, 97 So. 3d at 279 (recognizing potential due process violation).
21 CS/CS/CS/HB 1225 (2013) (died on Second Reading Calendar); CS/SB 1696 (2013) (died in Judiciary); CS/HB 1355 (2014) (died in House Appropriations Committee); CS/CS/CS/HB 435 (2015) (vetoed by Governor after passing House and Senate).
22 The Florida House of Representatives, Bills, http://www.myfloridahouse.gov/Sections/Bills/bills.aspx.
23 The language of the previously attempted amendments to §120.68(2)(b) is as follows: CS/CS/CS/HB 1225 (2013) (“Such time [to appeal] is hereby extended for any party 10 days from receipt by such party of the notice of the order, if such notice is received after the 25th day from the filing of the order.”); CS/SB 1696 (2013) (same); CS/HB 1355 (2014) (“If a party receives notice of the filing of the order later than the 25th day after the filing of the order with the agency clerk, the time by which the party must file a notice of appeal or petition for review is extended until 10 days after the date that the party received the notice of the filing of the order.”).
24 Letter from Gov. Rick Scott, State of Florida, to Kenneth W. Detzner, Secretary of State, Florida Department of State (June 16, 2015), available at http://www.flgov.com/wp-content/uploads/2015/06/Transmittal-Letter-6.16.15-HB-435.pdf.
25 W.T. Holding, Inc., 682 So. 2d at 1225; Progressive Exp. Ins. Co. v. Camillo, 80 So. 3d 394, 402 (Fla. 4th DCA 2012).
26 Microtel, Inc. v. Fla. Public Serv. Comm’n, 464 So. 2d 1189, 1191 (Fla. 1985) (“Subordinate functions may be transferred by the legislature [to an agency] to permit administration of legislative policy by an agency with the expertise and flexibility needed to deal with complex and fluid conditions.”); Fla. E. Coast Indus. Inc. v. State, Dep’t of Cmty. Affairs, 677 So. 2d 357, 360 (Fla. 1st DCA 1996) (noting “[l]egislature may authorize an administrative agency to adopt rules and regulations to enforce a particular law”); Pesta v. Dep’t of Corrs., 63 So. 3d 788, 790 (Fla. 1st DCA 2011) (agencies “only have such powers as statutes confer”) (citation omitted).
27 Fla. Const. art. 5, §2(a) (“The supreme court shall adopt rules for the practice and procedure in all courts including the time for seeking appellate review, the administrative supervision of all courts. . . . ”); City of Jacksonville Beach v. PERC, 359 So. 2d 578, 579 (Fla. 1st DCA 1978) (“[A]ny legislative attempt to create rules of practice or procedure would be an intrusion upon the power of the Florida Supreme Court as defined in [art.] V, [§]2(a), Florida Constitution, and, thus, in violation of the doctrine of separation of powers as set forth in [art.] II, [§]3, of that [c]onstitution.”); Adhin v. First Horizon Home Loans, 44 So. 3d 1245, 1250 (Fla. 5th DCA 2010) (“[Art.] V, [§]2(a) of the Florida Constitution gives the Florida Supreme Court the exclusive authority to ‘adopt rules for the practice and procedure in all courts.’”).
28 Fla. R. App. P. 9.020(i) (“An order is rendered when a signed, written order is filed with the clerk of the lower tribunal.”).
29 Fla. R. App. P. 9.110(b); Fla. R. App. P. 9.130(b).
30 Johnson v. State, 308 So. 2d 127 (Fla. 1975); see also Wait v. Florida Power & Light Co., 372 So. 2d 420, 423 (Fla. 1979) (discussing difference between substantive and procedural law).
31 Adhin, 44 So. 3d at 1250 (citation omitted).
32 Id. at 1250 n.4.
33 A similar situation exists when a party seeks a hearing on an agency decision. See Fla. Stat. §120.569(2)(c) (“This paragraph does not eliminate the availability of equitable tolling as a defense to the untimely filing of a petition [for a hearing].”); Uniform Rule of Procedure 28-106.111 (“Any person who receives written notice of an agency decision and who fails to file a written request for a hearing within 21 days waives the right to request a hearing on such matters. This provision does not eliminate the availability of equitable tolling as a defense.”); see also Pro Tech Monitoring, Inc. v. State, Dep’t of Corr., 72 So. 3d 277, 280 (Fla. 1st DCA 2011) (“Under the doctrine of equitable tolling, a late-filed petition should be accepted when the plaintiff has been misled or lulled into inaction, has in some extraordinary way been prevented from asserting his rights, or has timely asserted his rights mistakenly in the wrong forum, provided that the opposing party will suffer no prejudice.”) (internal quotations omitted).
34 Taylor, 520 So. 2d at 560.
35 Millinger, 672 So. 2d at 27.
37 The Uniform Rules of Procedure presumably would apply to such evidentiary hearings involving determinations necessary for implementation of §120.68(11). The Uniform Rules of Procedure, which also are part of the Florida Administrative Code, apply to “all proceedings in which the substantial interests of a party are determined by the agency” and to “all proceedings under [Ch.] 120” with limited exceptions. Uniform Rule of Procedure 28-106.101.
Katherine E. Giddings is a partner in Akerman LLP’s Tallahassee office.
Michael J. Larson is an associate in Akerman LLP’s Tallahassee office.
The authors thank Lawrence E. Sellers, partner in Holland & Knight LLP’s Tallahassee office for his valuable input on this topic.
This column is submitted on behalf of the Appellate Practice Section, Christopher V. Carlyle, chair, and Brandon Christian, editor.