Millinger v. Broward County Mental Health Div. and Risk Management

• Citation: 672 So.2d 24
• Decision Date: 14 March 1996
• Docket Number: No. 85343,85343
• Parties: 21 Fla. L. Weekly S114 Roy MILLINGER, Petitioner, v. BROWARD COUNTY MENTAL HEALTH DIVISION AND RISK MANAGEMENT, Respondent.
• Court: United States State Supreme Court of Florida

Page 24

672 So.2d 24

21 Fla. L. Weekly S114

Roy MILLINGER, Petitioner, v. BROWARD COUNTY MENTAL HEALTH DIVISION AND RISK MANAGEMENT, Respondent.

No. 85343.

Supreme Court of Florida.

March 14, 1996.

Richard Berman, Lauderhill, and Jay M. Levy of Jay M. Levy, P.A., Miami, for Petitioner.

Barbara B. Wagner, Deerfield Beach, for Respondent.

PER CURIAM.

We have for review Millinger v. Broward County Mental Health Division and Risk Management, 655 So.2d 104 (Fla. 1st DCA 1994), which expressly and directly conflicts with the opinion in New Washington Heights Community Development Conference v. Department of Community Affairs, 515 So.2d 328 (Fla. 3d DCA 1987). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. We recognize conflict on the general issue of whether an administrative agency has the inherent authority to grant relief under circumstances like those in the instant case. While we find that an administrative agency may have jurisdiction to grant relief in certain instances, the circumstances of this case were not sufficient to allow the Judge of Compensation Claims (JCC) to vacate and reenter his final order to allow Millinger a second opportunity to timely file an appeal in the district court.

FACTS

Petitioner Millinger filed a worker's compensation claim on November 25, 1991, and the parties litigated the issue of compensability before the Judge of Compensation Claims (JCC). The JCC entered an order denying Millinger's claim for compensation on January 27, 1993. The order was timely provided to Millinger and became final on February 26, 1993.

Millinger mailed his notice of appeal to the First District Court on February 24, 1993, two days before the expiration of the thirty-day filing period. The notice of appeal was received and filed at the First District on March 2, 1993, well after the expiration of the filing period. Millinger then filed a "Motion for Extension or in the Alternative Motion for Remand" in the district court requesting that the appeal be accepted as timely or, in the alternative, that the case be remanded to the JCC to determine whether excusable neglect existed so as to allow the JCC to vacate and reenter the already final order of January 27, 1993. ¹ The motion was accompanied by an affidavit of Millinger's counsel's legal secretary attesting that she called the Office of the Clerk of the First District Court of Appeal and was informed by an unknown employee that Millinger's notice of appeal would be timely filed so long as it was postmarked within the thirty-day filing period. On April 4, 1993, the First District entered an order denying Millinger's motion and dismissing the appeal as untimely.

Millinger then filed with the JCC a "motion for rehearing and motion to vacate" based on the same grounds asserted in Millinger's earlier motion in the First District. At the hearing on the motion, counsel acknowledged that he was aware of the necessity for actually filing the appeal within thirty days and had instructed his staff on this point. His secretary acted on her own in contacting the clerk's office of the First District. Following a hearing on the motion, the JCC vacated his original order of January 27, 1993, and reentered an identical order on June 30, 1993, to allow Millinger an opportunity to appeal. Millinger then timely appealed the June 30th order to the First District, challenging the JCC's denial of his claim for compensation. Respondent cross-appealed, challenging the JCC's grant of Millinger's motion to vacate the original order of January 27, 1993. On appeal, the First District held the JCC was without jurisdiction to vacate and reenter the final judgment to allow Millinger an opportunity to timely file an appeal.

NEW WASHINGTON HEIGHTS

Millinger contends that the JCC had authority to vacate and reenter his final order to preserve his appellate rights because, under New Washington Heights Community Development Conference v. Department of Community Affairs, 515 So.2d 328 (Fla. 3d DCA 1987), an administrative agency has jurisdiction to restart the appellate clock when reliance upon the instructions of a state functionary cause a notice of appeal to be untimely filed. The facts of New Washington Heights are similar to the facts in this case:

[O]n Friday morning, October 3, 1986, a secretary to appellant's counsel in Miami, Florida, telephoned the Department [of Community Affairs'] clerk in Tallahassee, Florida, inquiring about the procedure for perfecting the appeal, and, more particularly, whether the notice of appeal would be considered timely if it arrived by express mail that same day, after normal working hours. The clerk advised the secretary that the Department would consider the appeal filed as of the postmark date if it were sent by certified mail. Appellant's counsel then proceeded in accordance with those instructions, and the notice of appeal was sent by certified mail postmarked October 3, 1986.

Id. at 329. In dismissing the untimely appeal, the Third District noted that the appellant was not without a remedy:

It is, however, also well-settled that where state action deprives a party of the ability to file a timely notice of appeal, the appellate court, although deprived of jurisdiction over the appeal, will provide the thus-rejected appellant with an alternative avenue of review. It would be anomalous indeed if similar relief were unavailable to one appealing an administrative determination merely because the procedure governing administrative matters contains neither a counterpart to Florida Rule of Civil Procedure 1.540 nor anything resembling the great writ. Therefore, although we dismiss this appeal, we do so without prejudice to the appellant to apply to the Department to vacate and re-enter the operative order. If the Department acts favorably upon such application, the appellant may timely appeal the re-entered order and thereby challenge the merits of the original adverse agency action.

Id. at 329-30 (citations omitted).

We find that the reasoning of the opinion in New Washington Heights is not dispositive of this case for at least two reasons. First, Millinger's untimely notice of appeal in this case was not the direct result of misrepresentations of a state official. Attorneys cannot escape procedural errors by claiming reliance on the advice of a court clerk. See United States v. Heller, 957 F.2d 26, 30 (1st Cir.1992); Neeley v. Murchison, 815 F.2d 345, 347 (5th Cir.1987); Spinetti v. Atlantic Richfield Co., 552 F.2d 927 (Temp.Emer.Ct.App.1977).

Second, it was both inappropriate and unnecessary for counsel's secretary to call the court clerk for legal advice. Florida Rule of Appellate Procedure 4.165(a) clearly states:

An order of a judge of compensation claims may be appealed to the district court by filing a written notice of appeal with the district court or with any judge of compensation claims within 30 days from the date the judge's order is mailed to the parties.

(Emphasis added.) It is a settled rule of law that mailing, as opposed to filing, a notice within the thirty-day filing period is insufficient to preserve appellate rights. Coca Cola Foods v. Cordero, 589 So.2d 961, 962 (Fla. 1st DCA 1991); First Nat'l Bank v. Florida Unemployment Appeals Comm'n, 461 So.2d 208 (Fla. 1st DCA 1984). Moreover, Millinger's counsel admitted that he knew the notice had to be filed in the district court within the thirty-day filing period. Millinger, 655 So.2d at 104. It was counsel's responsibility to adequately supervise and instruct his staff to ensure that Millinger's notice of appeal was timely filed.

Consequently, we find that the facts of this case are not sufficient to allow the JCC to vacate and reenter his final order. Rather, we find that the First District correctly relied on Farrell v. Amica Mutual Insurance Co., 361 So.2d 408 (Fla.1978). In Farrell, we held that the JCC was without authority to vacate an otherwise final order entered five months previously where the motion for relief from the order was made approximately four months from the date on which the order became final. Id. at 411. We stated:

The [JCC] derives its very existence and authority from the legislature. §§ 440.25 and 440.45, Florida Statutes (1975). The [JCC] is an administrative body possessing quasi-judicial power but it is not a court. However, the Commission possesses...