St. Moritz Hotel v. Daughtry

• Decision Date: 09 June 1971
• Docket Number: No. 40530,40530
• Citation: 249 So.2d 27
• Court: Florida Supreme Court
• Parties: ST. MORITZ HOTEL, Petitioner, v. Jimmy C. DAUGHTRY and the Florida Industrial Commission, Respondents.

Page 27

249 So.2d 27

ST. MORITZ HOTEL, Petitioner, v. Jimmy C. DAUGHTRY and the Florida Industrial Commission, Respondents.

No. 40530.

Supreme Court of Florida.

June 9, 1971.

C. E. Miller, of Miller & Byrne, Orlando, for petitioner.

Jerome H. Wolfson of Wolfson & Appel, Miami, Patrick H. Mears and J. Franklin Garner, Tallahassee, for respondents.

McCAIN, Justice.

This cause is before us on petition for writ of certiorari to the Florida Industrial Relations Commission. The sole question presented for our consideration is whether petitioner's application for review was properly dismissed by the Full Commission as untimely. In our judgment the application was timely and the dismissal constituted error.

On April 7, 1970, the Judge of Industrial Claims entered an Order awarding claimant compensation in the form of weekly payments for nursing services to be continued 'so long as such services are necessary' and allowed an attorney's fee in the amount of $9,500. He stated that the award of an attorney's fee 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.

On April 22, 1970, the Judge of Industrial Claims sua sponte entered a supplemental order purporting to 'correct an error in computation or a scrivener's error' with respect to the award of attorney's fees in the April 7th order. In the supplemental order the Claims Judge found that the parties had stipulated that any award of attorney's fees should be in the sum of 30% Of the benefits recovered and that the present value of such benefits was $27,706.05. The Judge therefore reset the award of attorney's fees at $8,311.80.

Petitioner-employer filed an application for review of the order of April 22, 1970, with the Full Commission on May 4, 1970, more than 20 days after entry of the April 7th order. Upon respondent's motion, the application was dismissed as untimely, the Full Commission stating:

'As this Commission has stated previously that where the second or amended Order does not go into the merits but merely corrects a scrivener's error or some other evidence not going to the heart of the matter, then in such a case the time runs from the entry of the original Order and not the amending Order. See Howell v. Horn-Wilson, Inc., 2 FCR 29 (1956).'

In Howell v. Horne-Wilson, Inc., cited by the Commission, the supplemental order corrected an error in the mathematical computation of claimant's rate of compensation as specified in the original order. Compare Norris v. Winter Garden Citrus Growers Assn., 3 FCR 117 (1958).

We do not dispute the statement of the law by the Full Commission. 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. Goode v. Hialeah Race Course, Inc., 246 So.2d 105 (Fla.1971). The U.S. Supreme Court, in Federal Trade Commission v. Minneapolis-Honeywell Regulator Co., 344 U.S. 206, 73 S.Ct. 245, 97 L.Ed. 245 (1952) stated the rule as follows:

'* * * Only when the lower Court changes matters of substance, or resolves a genuine ambiguity, in a judgment previously rendered should the period within which an appeal must be taken or a petition for certiorari filed begin to run anew. The test is a practical one. The question is whether the lower court, in its second order, has disturbed or revised legal rights and obligations which, by its prior judgment, had been plainly and properly settled with finality.'

The issue for our consideration, therefore, is whether or not the supplemental order in the instant case materially changed the original order of the Claims Judge.

The Judge of Industrial Claims characterized his supplemental order as a correction of a scrivener's error or an error in computation. Respondent argues that this characterization should be binding upon us. However, it is axiomatic that although the characterization of an act or event is entitled to consideration, it will not control if it does not accurately describe the substance of the event in question. That is to say, substance and not form controls where the two are in conflict. Pierce v. Scott, 142 Fla. 581, 195 So. 160 (1940); Bruce's Juices, Inc. v. King, 61 So.2d 175 (Fla.1952); Nelson v. State ex rel. Fisher, 84 Fla. 631, 94 So. 680 (1922); Colburn v. Highland Realty Co., 153 So.2d 731 (Fla.App.2d, 1963); Miller v. Duke, 155 So.2d 627 (Fla.App.1st, 1963), rehearing denied; and Coleman v. Coleman, 191 So.2d 460 (Fla.App.1st, 1966).

It is our view that the supplemental order did materially change the original order entered on April 7th. The second order did two things which we deem significant: (1) it 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. Petitioner could hardly have attacked the figure of $27,706.05 placed on the benefits on the...