DUVAL COUNTY SCHOOL BOARD, AND GALLAGHER BASSETT INSURANCE SERVICE, EMPLOYER AND CARRIER, APPELLANTS/CROSS-APPELLEES,
v.
ROBERT C. RUPP, CLAIMANT, APPELLEE/CROSS-APPELLANT
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The dissenting opinion argues that the employer/carrier waived their right to challenge the deputy commissioner's impartiality by failing to seek recusal or correction of errors before the order became final, and that the issue was improperly raised for the first time on appeal.
The dissenting judge would have affirmed the order, believing that the employer/carrier waived their right to raise the issue of the deputy commissioner's impartiality on appeal by not addressing it at the trial level.
The employer/carrier had the opportunity to seek recusal of the deputy commissioner or request correction of errors within a twenty-day period after c…
The full statement of facts, procedural history, and disposition for this case are member content.
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ROBERT P. SMITH, Jr., Chief Judge.
In support of his motion to dismiss this appeal by the employer and carrier, Rupp urges that the appeal was untimely in that the notice of appeal was not filed within 30 days after rendition of the principal order of which review is sought, though it was filed within 30 days after the deputy later amended the order to remedy an omission of findings supporting an award of attorney’s fees.
Conceding the applicability of the rule that amending a prior compensation order “in an immaterial way” does not begin again the time for appeal, St. Moritz Hotel v. Daughtry, 249 So. 2d 27 (Fla.1971), we apply that rule with liberality. We do that not necessarily to encourage the appeals that may thereby be saved but to encourage the deputy and parties, within the 30-day period before a compensation order becomes final, to correct remediable errors that might otherwise inspire needless appeals. Section 440.25(4)(a), Florida Statutes (1981); Suarez v. American Building Maintenance, et al., 412 So. 2d 32 (Fla. 1st DCA 1982); Genuine Parts Co. v. Morris, 409 So. 2d 156 (Fla. 1st DCA 1982); Acosta Roofing Co. v. Giliyard, 402 So. 2d 1321 (Fla. 1st DCA 1981).
The amendment to the compensation order adding a paragraph finding bad faith as a predicate for the antecedent attorney’s fee award was a substantial amendment. The time for appeal began again when the amended order was rendered, the appeal was timely, and appellant’s motion to dismiss, which is not otherwise meritorious, is DENIED.
McCORD and BOOTH, JJ., concur.
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SKY Lake Gardens Rec., Inc. v. Dist. Court OF Appeal, 511 So. 2d 293 (Fla. 1987)…f the amended final judgment. State ex rel. Park Towers Associates, Ltd. v. District Court of Appeal, Third District, 221 So. 2d 136 (Fla. 1969); Wakulla Wood Products v. Richey, 465 So. 2d 660 (Fla. 1st DCA 1985); Duval County School Board v. Rupp, 414 So. 2d 556 (Fla.1st DCA 1982). We therefore conclude that petitioner’s appeal was timely filed and should not have been dismissed. Having determined that the district court improperly dismissed petitioner’s appeal, we further conclude that the district court…
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Skinner v. Fla. Power Corp., 564 So. 2d 572 (Fla. 1st DCA 1990)…a. 1st DCA 1988). Further, appellant argues that the amendment to the order was not material. Where a workers’ compensation order is amended in an immaterial way, the time for taking an appeal does not begin again. Duval County School Board v. Rupp, 414 So. 2d 556 (Fla. 1st DCA 1982). That rule would not apply in this situation, however, where the original order is vacated and another, amended, order is entered by the JCC. See Fla.W.C. R.P. 4.141(a) and (b). We nevertheless deny the motion to dismiss. The n…
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Perez v. Palm Beach Cnty. Sch. Bd. & F.A. Richard & Assocs., 884 So. 2d 412 (Fla. 1st DCA 2004)…PER CURIAM. DISMISSED. St. Moritz Hotel v. Daughtry, 249 So. 2d 27 (Fla.1971); Duval County School Board v. Rupp, 414 So. 2d 556 (Fla. 1st DCA 1982). BARFIELD, VAN NORTWTCK and PADOVANO, JJ., concur,…
Authorities Cited
- Acosta Roofing Co. & Lumbermens Mut. Cas. Co. v. Gussie Gillyard, 402 So. 2d 1321 (Fla. 1st DCA 1981)
- ST. Moritz Hotel v. Jimmy C. Daughtry & the Fla. Indus. Comm'n, 249 So. 2d 27 (Fla. 1971)
- Genuine Parts Co. & Sentry Indem. Co. v. Morris, 409 So. 2d 156 (Fla. 1st DCA 1982)
- Suarez v. Am. Bldg. Maint. & Allstate Ins. Co., 412 So. 2d 32 (Fla. 1st DCA 1982)