EVELYNE ETIENNE, APPELLANT,
v.
SIMCO RECYCLING CORPORATION, AND FLORIDA UNEMPLOYMENT APPEALS COMMISSION, APPELLEES
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The Florida District Court of Appeal dismissed an untimely appeal from an unemployment benefits denial without prejudice, establishing that an appellant who claims non-receipt of notice of an administrative order may seek relief by requesting the agency vacate and re-enter the order, thereby creating a new appealable decision.
An untimely appeal from an administrative order, while precluding appellate jurisdiction, is not irremediable. The appropriate remedy is to dismiss the appeal without prejudice, allowing the appellant to request the administrative agency vacate and re-enter the order, which would create a new appealable decision within the statutory time period.
[1] An untimely appeal from an administrative order may be dismissed without prejudice, allowing the appellant to seek relief in the lower tribunal.
[2] When an appellant claims not to have received notice of an appealable administrative order, the proper procedure is to dismiss the untimely appeal without prejudice.
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Join FLexlaw to unlock all legal intelligence“the appellant's untimeliness does preclude this Court from exercising jurisdiction, see State ex rel. Diamond Berk Ins. Agency v. Carroll, 102 So.2d 129 (Fla.1958); Harris v. Condermann, 113 So.2d 235 (Fla. 3d DCA 1959), cert. denied, 117 So.2d 495 (Fla.1959), the situation is not "irremediable."”
Establishes that while untimeliness creates a jurisdictional bar, it is not an absolute and irremediable defect.
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Join FLexlaw to unlock all legal intelligenceThe Unemployment Appeals Commission entered an order on June 24, 1998, denying Etienne unemployment benefits and sent notice of the order. Etienne cla…
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GERSTEN, J.
Appellee, the Unemployment Appeals Commission (“the UAC”) moves this court to dismiss Evelyne Etienne’s (“the appellant”) appeal. We grant the motion to dismiss without prejudice and write to clarify the procedure to be followed when an untimely appellant claims not to have been notified of the entry of an appealable administrative order.
On June 24, 1998, the UAC entered an order denying the appellant unemployment benefits. The UAC apparently sent the appellant a notice of the order’s entry informing her of her right to appeal within thirty days. The appellant, however, claims that she never received the notification and only found out about the decision by way of a subsequent letter “telling [her] that [she] had to pay the money paid to [her] by unemployment.” She provided the UAC with a sworn statement to this effect and indicated that she wanted to appeal. She also asked the UAC for advice regarding “what [she] need[ed] to do.” On August 7, 1998, the appellant filed her notice of appeal in this Court; two weeks after the thirty-day deadline had passed.
The UAC argues that the appellant’s failure to file her notice of appeal within the requisite time period produced an “irremediable jurisdictional defect.” The UAC is partially correct. While the appellant’s untimeliness does preclude this Court from exercising jurisdiction, see State ex rel. Diamond Berk Ins. Agency v. Carroll, 102 So. 2d 129 (Fla.1958); Harris v. Condermann, 113 So. 2d 235 (Fla. 3d DCA 1959), cert. denied, 117 So. 2d 495 (Fla.1959), the situation is not “irremediable.” See Millinger v. Broward County Mental Health Div. and Risk Management, 672 So. 2d 24 (Fla.1996); Ford v. Public Employees Relations Commission, 717 So. 2d 149 (Fla. 5th DCA 1998).
Under similar circumstances, in untimely appeals from circuit court orders, the appropriate remedy has been to dismiss the untimely appeal without prejudice, allowing the appellant to pursue relief in the lower court by motion seeking to set aside the original order and requesting that a new appealable one be entered. See e.g. Holland v. Singletary, 712 So. 2d 840 (Fla. 1st DCA 1998); Snelson v. Snelson, 440 So. 2d 477 (Fla. 5th DCA 1983); Woldarsky v. Woldarsky, 243 So. 2d 629 (Fla. 1st DCA 1971).
This approach was extended to appeals from administrative orders in New Washington Heights Community Dev. Conference v. Dep’t of Community Affairs, 515 So. 2d 328 (Fla. 3d DCA1987), disapproved on other grounds by Millinger v. Broward County Mental Health Div. and Risk Management, 672 So. 2d 24 (Fla.1996).
There, this Court stated:
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.
New Washington Heights Community Dev. Conference v. Dep’t of Community Affairs, 515 So. 2d at 330.
We take this position once again and grant the UAC’s motion to dismiss without prejudice. The appellant is free to ask the UAC to vacate and re-enter the operative order. If the UAC cooperates, then the appellant may timely appeal the re-entered order. If not, then the appellant may appeal the UAC’s refusal to re-enter the order. Appeal dismissed.
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Cited By (13 total)
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Dep't OF Corr. v. Saulter, 742 So. 2d 368 (Fla. 1st DCA 1999)…order in order to permit belated appeal); Taylor v. Department of Prof'l Regulation, Bd. of Med. Exam’rs, 520 So. 2d 557 (Fla.1988) (allowing appeal from amendatory final agency order that corrected clerical error); Etienne v. Simco Recycling Corp., 721 So. 2d 399 (Fla. 3d DCA 1998); W.T. Holding, Inc. v. State, Agency for Health Care Admin., 682 So. 2d 1224, 1225 (Fla. 4th DCA 1996) (holding agency should enter new order where party “had not received a copy of the final order and had been unaware of its issu…
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Gundlah v. Moore, 831 So. 2d 780 (Fla. 4th DCA 2002)…smiss the untimely appeal without prejudice, allowing the appellant to pursue relief in the lower tribunal by motion seeking to set aside the original order and requesting that a new appealable order be entered. See Etienne v. Simco Recycling Corp., 721 So. 2d 399 (Fla. 3d DCA 1998); see also Ney v. Unemployment Appeals Comm’n, 778 So. 2d 509 (Fla. 4th DCA 2001); Dorsey v. State, 764 So. 2d 619 (Fla. 4th DCA 2000); Dep’t of Corr. v. Saulter, 742 So. 2d 368 (Fla. 1st DCA 1999). If the lower tribunal acts favor…
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Dorsey v. State of Fla. & Michael W. Moore, 764 So. 2d 619 (Fla. 4th DCA 2000)…App. P. 9.100(c). This denial is without prejudice to petitioner asking the Secretary of the Department of Corrections to vacate and re-issue the challenged decision from which petitioner may then timely appeal. See Etienne v. Simco Recycling Corp., 721 So. 2d 399 (Fla. 3d DCA 1998). STEVENSON, GROSS and TAYLOR, JJ., concur.…
Previewing 3 of 13 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (11 total)
- Snelson v. Snelson, 440 So. 2d 477 (Fla. 5th DCA 1983)
- State v. Honorable Charles A. Carroll, 102 So. 2d 129 (Fla. 1958)
- Woldarsky v. Woldarsky, 243 So. 2d 629 (Fla. 1st DCA 1971)
- Millinger v. Broward Cnty. Mental Health Div. & Risk Mgmt., 672 So. 2d 24 (Fla. 1996)
- New Wash. Heights Cmty. Dev. Conf. v. Dep't OF Cmty. Affairs, 515 So. 2d 328 (Fla. 3d DCA 1987)
- Harris v. Condermann, 113 So. 2d 235 (Fla. 3d DCA 1959)
- D.M.H. v. State, 717 So. 2d 149 (Fla. 5th DCA 1998)
- Ford v. Pub. Emps. Relations Comm'n, 717 So. 2d 149 (Fla. 5th DCA 1998)
- Baker v. Allied Steel Erectors, 117 So. 2d 495 (Fla. 1959)
- De Camacho v. Hawker, 117 So. 2d 495 (Fla. 1959)