PHYLLIS A. MALYN, APPELLANT,
v.
ATLANTIC FEDERAL SAVINGS & LOAN ASSOCIATION/FIDELITY & DEPOSIT COMPANY OF MARYLAND, APPELLEES

Fla. 1st DCA | 1980-06-19
No. TT-339
McCORD, BOOTH and SHAW, JJ., concur.
384 So. 2d 957 Florida District Court of Appeal, First District (1980) Positive Treatment
Cited by 6 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

The First District Court of Appeal dismissed an appeal from a workers' compensation denial because the notice of appeal was not timely filed with the deputy commissioner, even though it was timely filed with the appellate court. The court held that Workers' Compensation Rule of Procedure 16(a) requires filing with the deputy commissioner to invoke jurisdiction, unlike the dual-filing rules that governed other administrative appeals.


Holding

The court held that it lacks jurisdiction to entertain the appeal because the notice of appeal was not timely filed with the deputy commissioner as required by Workers' Compensation Rule of Procedure 16(a). The rule does not permit dual filing and expressly provides that jurisdiction is invoked by filing with the deputy commissioner within 30 days.


Headnotes

[1] The timely filing of a notice of appeal at the place required by the rules is essential to confer jurisdiction on the appellate court.

[2] Workers' Compensation Rule of Procedure 16(a) requires the notice of appeal of a Deputy's order to be filed with any Deputy within 30 days of the mailing of the order.

Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.

Join FLexlaw to unlock all legal intelligence

Key Quotes

“Jurisdiction' of the District Court is invoked as of the date of filing of the notice of appeal with any Deputy.”

This quote from Workers' Compensation Rule of Procedure 16(a) establishes that filing with the deputy commissioner—not the appellate court—invokes jurisdiction.

Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.

Join FLexlaw to unlock all legal intelligence

Facts & Procedural History

An order denying workers' compensation benefits was issued by a deputy commissioner on December 21, 1979. The 30-day deadline for filing a notice of a…

The full statement of facts, procedural history, and disposition for this case are member content.

Join FLexlaw to unlock all legal intelligence

© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.


Opinion of the Court
PER CURIAM.

PER CURIAM.

This is an appeal from an order of the deputy commissioner denying appellant workers’ compensation benefits. This order was rendered on December 21, 1979, and mailed to the parties the same day. Since the thirtieth day fell on January 20,1980, a Sunday, the time for filing the notice of appeal was extended to January 21, 1980. The notice was filed in this Court on January 21,1980; however, it was not filed with the deputy commissioner until the following day, January 22, 1980.

It is apparent from the above chronology that the notice of appeal filed with this Court was timely, but the notice filed with the deputy commissioner was untimely. The question thus presented by these facts is whether the failure to timely file a notice of appeal from a workers’ compensation order with a deputy commissioner deprives this Court of appellate jurisdiction where the notice was filed in timely fashion with this Court.

Appellant maintains that the rationale underlying Hines v. Lykes Pasco Packing, 374 So. 2d 1132 (Fla. 2d DCA 1979) and Franchi v. Florida Department of Commerce, 375 So. 2d 1154 (Fla. 4th DCA 1979) answers the above question in the affirmative. We disagree.

In the above cited cases the Second and Fourth District Courts of Appeal, respectively, held that, in administrative appeals, the notice of appeal is timely if it reaches the appellate court within thirty days, even though it is not filed with the agency within thirty days. These administrative appeals were governed by the particular provisions of Florida Rules of Appellate Procedure 9.110(b) and (c), which provide for filing the notice both with the appellate court and the agency. Further, in Hines, supra, the Second District Court of Appeal specifically observed:

The ambiguity inherent in the new rules requiring a notice to be filed in two places but not specifying which is jurisdictional may have created a procedural and technical pitfall. Id., at 1133.

The instant case, however, is not subject to the provisions of Florida Rules of Appellate Procedure 9.110(b) and (c). Instead, it is governed by Workers’ Compensation Rule of Procedure 16(a), which provides:

(a) Notice of Appeal. Notice of appeal of an order of a Deputy shall be filed with any Deputy within 30 days of the date copies of the Deputy’s orders were mailed to the parties. Appellant shall file the original and one copy of the notice, accompanied by a $50.00 filing fee, by check or money order, payable to the Clerk of the District Court. Jurisdiction' of the District Court is invoked as of the date of filing of the notice of appeal with any Deputy. (Emphasis supplied.)

This rule does not provide for dual filing, as do Florida Rules of Appellate Procedure 9.110(b) and (c). Further, it is not in the least ambiguous, for it expressly defines this Court’s jurisdiction as “the date of filing the notice of appeal with any Deputy.” Thus, the rationale underlying Hines, supra, and Franchi, supra, is inapposite to the instant appeal.

Rather, we think that the instant matter is controlled by State ex rel. Diamond Berk Insurance Agency, Inc. v. Carroll, 102 So. 2d 129 (Fla.1958), in which the Florida Supreme Court held:

[T]he timely filing of a notice of appeal at the place required by the rules is essential to confer jurisdiction on the appellate court. Id., at 130.

See also: Lampkin-Asam v. District Court of Appeal, 364 So. 2d 469 (Fla.1978).

Accordingly, since the notice of appeal in this cause was not timely filed in the place specified in Workers’ Compensation Rule of Procedure, this Court is without jurisdiction to entertain this appeal.

The Motion to Dismiss Appeal is hereby granted.

McCORD, BOOTH and SHAW, JJ., concur.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • G.A. v. State, 391 So. 2d 720 (Fla. 1st DCA 1980)
    …ver, we think these appeals are governed by Florida Rules of Juvenile Procedure (1977) and Sections 39.09(2)(e) and 39.-14(1), Fla.Stats. (1978 Supp.), rather than by Fla.R.App.P. 9.140(b). See Malyn v. Atlantic Federal Savings and Loan Association, 384 So. 2d 957 (Fla. 1st DCA 1980); Fidelity and Casualty Co. of N. Y. v. Scott, 386 So. 2d 315 (Fla. 1st DCA 1980). Section 39.09(2)(e) provides that a waiver order shall be reviewable pursuant to Section 39.14, Fla.Stat., and the Florida Rules of Appellate Proc…
  • …pellate Procedure are fully applicable to proceedings before this court. See, e. g., Davies, 379 So. 2d at 1313; Fidelity & Casualty Co. [*254] of New York v. Scott, 386 So. 2d 315, 316 (Fla. 1st DCA 1980). Cf. Malyn v. Atlantic Federal S & L Ass'n, 384 So. 2d 957 (Fla. 1st DCA 1980). The Deputy’s Order is reversed and this cause is remanded with instructions to base the appellant’s rate of compensation on his average weekly wage as of September 1, 1976. ROBERT P. SMITH, Jr., J., and WOOD-IE A. LILES (Ret…
  • Westberry v. Copeland Sausage Co., 397 So. 2d 1018 (Fla. 1st DCA 1981)
    …Review, §§ 117-120), this court would still be without jurisdiction since no timely notice was filed with the deputy commissioner as required by Worker’s Compensation Rule of Procedure 16(a). See Malyn v. Atlantic Federal Savings & Loan Association, 384 So. 2d 957 (Fla. 1st DCA 1980). Because of the public policy favoring disposition of litigation on the merits, rather than upon technical matters of procedure, we have considered the circumstances under which an appellate court may recall its mandate. In Cha…

Authorities Cited

Full citator, related cases, and AI research tools

Open in FLexlaw