Keene v. Nudera
| Decision Date | 19 May 1995 |
| Docket Number | No. 94-04406,94-04406 |
| Citation | 661 So.2d 40 |
| Parties | 20 Fla. L. Weekly D1232 Marjorie KEENE, Petitioner, v. Joseph NUDERA, Respondent. |
| Court | Florida District Court of Appeals |
David Solomon, Clearwater, for petitioner.
Frank A. Miller of Stuart & Strickland, P.A., Tampa, for respondent.
Marjorie Keene filed a petition with this court requesting certiorari review of a nonfinal order relating to discovery. We dismiss this proceeding because the petition, which is facially insufficient, was not accompanied by either a filing fee or an order of indigency. This court gave petitioner's counsel an opportunity to prove his client's indigency status, and he has failed to either obtain an order from the trial court or file a sufficient motion and affidavit with this court. Under any interpretation of section 57.081, Florida Statutes (Supp.1994), or Florida Rule of Appellate Procedure 9.430, petitioner's counsel has not established a basis for an order of indigency.
Because the conflict between the procedure described in section 57.081 and the procedure required by rule 9.430 is sometimes confusing for appellants and petitioners, we take this opportunity to describe the established procedures for filing appeals and original proceedings for indigent clients in civil cases. 1 As this case demonstrates, failure to follow these procedures may result in the dismissal of an appellate proceeding.
Ms. Keene is a plaintiff in a personal injury action. The petition filed in this court represents that she was injured in an automobile accident caused by Joseph Nudera's negligence. In discovery, the defendant allegedly sought information concerning Ms. Keene's prior medical treatment, including treatment relating to a mental or emotional condition. Ms. Keene filed a motion for protective order to prevent disclosure of "medical care unrelated to injuries claimed." The trial court entered an order requiring the plaintiff to answer interrogatories, respond to a request for production, and attend a deposition. The trial court's order requires the attorneys to maintain the privacy of information relating to any emotional or mental condition, as well as any unrelated physical condition, unless they are authorized to disclose the information by a future court order. The order further provides for in camera inspection of certain documents prior to discovery. Ms. Keene's petition asks this court to issue a writ of certiorari quashing the discovery order to the extent that it allows discovery of medical issues "beyond the scope of the injuries claimed in the underlying automobile negligence action."
If Ms. Keene's attorney had properly filed this petition with either a filing fee or an order of indigency, we would have summarily denied the petition without issuing an order to show cause. The two-page petition was not accompanied by an appendix as required by Florida Rule of Appellate Procedure 9.100(e). Instead, Ms. Keene's attorney attached to the petition: (1) a copy of a motion for protective order, (2) a discovery order entered within thirty days of the petition, and (3) another discovery order entered several months earlier. We could not enter an order narrowing the scope of discovery to injuries caused in the automobile accident because we have no pleadings or evidence from the trial court to establish that an automobile accident occurred, let alone to establish what, if any, injuries Ms. Keene sustained in that accident. Even accepting at face value the representations in the short petition, there is no reason to conclude that the trial court's order limiting discovery in favor of Ms. Keene departs from the essential requirements of the law.
Our disposition of this matter has been delayed because Ms. Keene's attorney filed the petition without paying a filing fee or obtaining an order of indigency. The failure to pay a filing fee on time is not jurisdictional. Fla.R.App.P. 9.040(h). Thus, this court accepts a notice of appeal or a petition that commences an appellate proceeding, even if we receive no filing fee. We do not rule upon the merits of such an appeal or petition until the fee either has been paid or has been waived by an order of indigency. If the issue of the filing fee is not resolved by the appellant or petitioner after notice from this court, the proceeding is dismissed without a ruling on the merits.
Most attorneys who file an appellate proceeding for an indigent client obtain an order of indigency from the trial court in the thirty days between rendition of the relevant order and the expiration of the time for the filing of an appellate proceeding. Occasionally, an attorney will submit a letter with the notice of appeal or with the petition in an original proceeding, explaining that the order has not yet been entered, but will be provided in the near future.
By contrast, on at least ten prior occasions in the last twenty-five months, David Solomon, the attorney who represents Ms. Keene, has filed appellate proceedings in this court without a fee or an order of indigency. 2 On each occasion, this court has ordered Mr. Solomon to either pay the filing fee, or establish indigency. These orders have resulted in delay and confusion in several appeals. In addition to the possible harm to the litigants, this process has been time-consuming and expensive for this court.
In Ms. Keene's case, Mr. Solomon moved for an extension of time to comply with the court's order on fees because his client had "recently not been easily available." When this court ordered him to appear to show cause why sanctions should not be imposed under rules 9.040(h) and 9.410, he filed a document entitled "affidavit" and signed by Ms. Keene, stating that she is "without gainful employment, any income, or any assets," and that she is "currently residing with family and/or friends, who do not charge [her] rent." 3 Significantly, this document contains no formal oath and does not employ the standard language of an affidavit. See Sec. 92.525, Fla.Stat. (1993). The format of the affidavit would not be acceptable, even if it had been prepared and submitted by a prisoner untrained in the law. State v. Shearer, 628 So.2d 1102 (Fla.1993); Fla.R.Crim.P. 3.987. It is apparent from Mr. Solomon's presentation at the hearing on the order to show cause that he is not willfully disobeying our orders, but he does not understand the basic procedures for establishing indigency status in an appellate proceeding.
Because we have given Ms. Keene an opportunity to establish her right to an appellate proceeding without the payment of a filing fee, and because it is apparent that she would be entitled to no relief even if we gave her a greater opportunity to establish her indigency, we dismiss this proceeding.
This court has the power to fine David Solomon for his repeated failure to comply with rule 9.040(h). See Fla.R.App.P. 9.410; In re Sanctions, 495 So.2d 187 (Fla. 2d DCA 1986). We conclude, however, that a fine is not the most productive solution to this problem. In lieu of a fine, Mr. Solomon is ordered to obtain a minimum of ten continuing legal education hours in appellate practice or procedure, in addition to the continuing legal education required by rule 6-10.3 of the Rules Regulating The Florida Bar, during the next twelve months, and provide proof of that education to the clerk of this court.
Prior to 1980, a litigant did not have a substantive right to appeal an action without the payment of a filing fee. Hillman v. Federal Nat'l Mortgage Ass'n, 375 So.2d 336 (Fla. 4th DCA 1979), cert. denied, 385 So.2d 758 (Fla.1980); Lee v. City of Winter Haven, 386 So.2d 268 (Fla. 2d DCA 1980). In chapter 80-348, Laws of Florida, the legislature created a statutory right for an indigent person to gain such access to Florida's appellate courts. Kleinschmidt v. Estate of Kleinschmidt, 392 So.2d 66 (Fla. 3d DCA 1981); see also Fields v. Zinman, 394 So.2d 1133 (Fla. 4th DCA 1981) (Hurley, J. concurring), review dismissed, 417 So.2d 329 (Fla.1982). That right is codified in section 57.081(1), Florida Statutes (Supp.1994).
In addition to giving indigent litigants a substantive right to the waiver of appellate filing fees, section 57.081(1) describes a procedure for obtaining a certificate of indigency from the clerk of court. A 1994 amendment to the statute purports to allow the clerk to issue its certificate on an attorney's certification instead of a party's affidavit. Ch. 94-348, Laws of Fla.; Sec. 57.081, Fla.Stat. (Supp.1994). The statute allows an appeal of a clerk's denial of a certification to the "court having jurisdiction of the cause of action."
The legislature's suggested procedure might be workable, but it conflicts with established rules of judicial procedure. Only the supreme court has the constitutional power to adopt rules for the practice and procedure in all courts. Art. II, Sec. 3, Art. V, Sec. 2, Fla. Const. (1968); Markert v. Johnston, 367 So.2d 1003 (Fla.1978).
Florida Rule of Appellate Procedure 9.430 states:
A party who has the right to seek review without payment of costs shall file a motion in the lower tribunal, with an affidavit showing the party's inability either to pay fees and costs or to give security therefor. If the motion is granted, the party may proceed without further application to the court and without either the prepayment of fees or costs in the lower tribunal or court or the giving of security therefor. If the motion is denied, the lower tribunal shall state in writing the reasons therefor. Review shall be by motion filed in the court.
Florida Rule of Judicial Administration 2.040(b)(3) states:
(3) Filing Fee. In all cases filed in the court, the clerk shall require the payment of a fee as provided by law at the time the notice,...
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Hyden v. State
...has suggested that, under Shearer, the oath in section 92.525(2) is available to “a prisoner untrained in the law.” Keene v. Nudera, 661 So.2d 40, 43 (Fla. 2d DCA 1995). However, Hyden's motion to dismiss and affidavit were filed by defense ...
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Jachimski v. State, 2D14–1647.
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