Breen v. Smith, 93-1939

• Decision Date: 28 October 1994
• Docket Number: No. 93-1939,93-1939
• Citation: 644 So.2d 183
• Court: Florida District Court of Appeals
• Parties: 19 Fla. L. Weekly D2294 John F. BREEN, Appellant, v. Diana K. SMITH, Appellee.

Page 183

644 So.2d 183

19 Fla. L. Weekly D2294

John F. BREEN, Appellant, v. Diana K. SMITH, Appellee.

No. 93-1939.

District Court of Appeal of Florida,

First District.

Oct. 28, 1994.

Georganne DeLaughter of Cameron, Marriott, Walsh, Hodges & D'Assaro, P.A., Daytona Beach, for appellant.

Marla J. Rawnsley of Smith, Schoder, Rouse & Bouck, P.A., Daytona Beach, for appellee.

PER CURIAM.

This workers' compensation cause is before us on appeal from an order of a successor judge of compensation claims (JCC) correcting the original JCC's final order awarding benefits to appellee Smith. Over a year after the original JCC's final order became final by operation of section 440.25(4)(a), Florida Statutes (1991), ¹ Smith filed a motion to correct scrivener's error on April 20, 1993, asserting that Breen, as the owner of X-tra Pizza, was also Smith's employer, and requesting that references to Breen as "owner" in the final order be corrected to read "owner/employer." A successor JCC ² held a hearing on Smith's motion and shortly thereafter issued a corrected final order identifying Breen as "owner/employer."

Because the original JCC's final order was not appealed before it became final, neither the original nor the successor JCC retained jurisdiction to vacate, amend, or correct clerical errors therein. See Fla.R.Work.Comp.P. 4.141(b) (providing that at the JCC's discretion, an order not yet final by operation of section 440.25, Florida Statutes, may be either vacated or amended at either the JCC's own initiative or pursuant to a motion for rehearing); Fla.R.Work.Comp.P. 4.141(c), 4.160(h)(3), and 4.165(g) (providing that if an order is appealed before becoming final, the JCC retains jurisdiction to correct clerical errors at any time before the record is filed with the district court); see also Polk County Board of County Commissioners v. Patterson, 433 So.2d 1298, 1299 (Fla. 1st DCA 1983) (affirming deputy commissioner's assessment of attorney fees, holding that "[i]f the deputy's ruling upon that issue was unintended by the parties, or was otherwise inadvertent, that oversight might and should have been brought to the deputy's attention within 30 days after the order was mailed, before it became final" under section 440.25(4)(a)); Stone & Webster v. McCray, 377 So.2d 30, 31 (Fla. 1st DCA 1979) (quashing judge of industrial claim's order vacating and republishing prior order, holding that "[t]he earlier order had become final and the judge was without jurisdiction to amend, vacate, or republish it.").

Moreover, we cannot construe the successor JCC's correction to have been a modification under section 440.28, Florida Statutes (1991). By...