FLORIDA DEPARTMENT OF CORRECTIONS, APPELLANT,
v.
JASON SCHWARZ, STEVEN HOPKINS, SCOTT STEWART, CHARLES KRAUS, DAVID WARRILOW, AND PUBLIC EMPLOYEES RELATIONS COMMISSION, APPELLEES

Fla. 1st DCA | 2011-06-03
No. 1D11-3287
BENTON, C.J., DAVIS, and MARSTILLER, JJ., concur.
134 So. 3d 1002 Florida District Court of Appeal, First District (2011) Positive Treatment
Cited by 1 case

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Synopsis

The Florida Department of Corrections appealed a Public Employees Relations Commission order granting reinstatement and back pay to five employees, but the appeal was initially dismissed as premature because the PERC order did not specify the amount of back pay owed. The court reconsidered after learning that PERC had issued separate final orders determining the exact back pay amounts in new dockets, and held that the premature notice of appeal became effective when those final orders were entered.


Holding

The court held that the prematurely filed notice of appeal became effective when PERC entered its final orders determining the amounts of back pay, thereby vesting jurisdiction in the appellate court to review those final orders. Under Florida Rule of Appellate Procedure 9.110(í), a premature notice of appeal is effective when a final order is rendered before dismissal of the appeal.


Headnotes

[1] An order determining entitlement to back pay but not the amount of back pay due is not a final, appealable order.

[2] A prematurely filed notice of appeal becomes effective and vests jurisdiction in the appellate court when a final order is rendered before the dismissal of the appeal.

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Key Quotes

“if a final order is rendered before dismissal of the premature appeal, the premature notice of appeal shall be considered effective to vest jurisdiction in the court to review the final order”

Establishes the key rule from Florida Rule of Appellate Procedure 9.110(í) that allows premature appeals to become effective if final orders are issued before dismissal

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Facts & Procedural History

PERC consolidated five cases and entered a June 3, 2011 order granting five DOC employees reinstatement and back pay but without determining the speci…

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Opinion of the Court
PER CURIAM.

ORDER GRANTING MOTION FOR RECONSIDERATION

PER CURIAM.

The Department of Corrections (DOC) has asked us to reconsider our order dismissing the appeal it took from an order deciding that five DOC employees were entitled to reinstatement and back pay. The Public Employees Relations Commission (PERC) entered a single order on June 3, 2011, in five cases that PERC had consolidated for disposition, Nos. CS-2010-255, CS-2010-265, CS-2010-266, CS-2010-267 and CS-2010-269. In the June 3, 2011 order, PERC ordered reinstatement and back pay for all five without determining the amount of back pay due any of them.

We entered the order dismissing the appeal from PERC’s June 3, 2011 order on overwhelming (if not wholly consistent) authority. See Mathis v. Fla. Dep’t of Corr., 726 So.2d 389, 391 n. 2 (Fla. 1st DCA 1999). See also SSA Sec. Inc. v. Pierre, 44 So.3d 1272, 1273 (Fla. 1st DCA 2010) (holding order of the Florida Commission on Human Relations which determined liability in favor of appellee and ordered appellant to remit back pay, but reserved jurisdiction over the amount of back pay to be awarded, was not appeal-able final agency action, rejecting the argument that the formula provided in the order for calculating the amount of back pay rendered the issue similar to a calculation of prejudgment interest); Lazy Days’ RV Ctr., Inc. v. Shepley, 929 So.2d 639, 639-40 (Fla. 1st DCA 2006) (dismissing for lack of jurisdiction, with citation to Mathis ); Dep’t of Corr. v. Saulter, 751 So.2d 163 (Fla. 1st DCA 2000) (dismissing for lack of jurisdiction, with citation to Mathis ); Hill v. Div. of Ret., 687 So.2d 1376, 1377 (Fla. 1st DCA 1997) (“[An administrative order’s] finality depends on whether it has brought the administrative adjudicative process to a close.”). Cf. Baron v. Provencial, 908 So.2d 526, 527 (Fla. 4th DCA 2005) (holding that a trial court order which only “gave the parties some big picture guidance concerning the expenses the seller was entitled to recover and asked the parties to work out the details” was non-final because “judgments that leave an element of damages to be determined later are not final orders”); Abifaraj v. Fla. Birth-Related Neurological Injury Comp. Ass’n, 844 So.2d 751, 752-53 (Fla. 1st DCA 2003) (concluding an administrative order which determined the appellant’s claim was compensable under the Florida Birth-Related Neurological Injury Compensation Plan, ordered the payment of previously incurred expenses, and accorded a lump sum award of $100,000, but which did not make findings as to the amount of the previously incurred expenses which the appellee was ordered to pay, was not an appealable final order because actual expenses which arose from the compensable injury were not an ancillary or collateral issue like attorney’s fees and costs); Fla. Leisure Acquisition Corp. v. Fla. Comm’n on Human Relations, 639 So.2d 1028, 1028-29 (Fla. 5th DCA 1994) (rejecting argument that, when liability and damages aspects of the case were bifurcated pursuant to stipulation of the parties, Florida Leisure would be deprived of an adequate remedy if appellate review were delayed until after entry of a final order determining all issues). But see *1004 State, Dep’t of Corr. v. Smith, 980 So.2d 606 (Fla. 1st DCA 2008). Our view was and remains that an order deciding entitlement to, but not the amount of, back pay is not a final, appealable order.

We were, however, unaware that — as DOC now advises us in the present motion for reconsideration — PERC had “issued orders regarding the exact amount of back pay due to each of the employees.” PERC entered five separate orders in new administrative dockets1 corresponding to the five consolidated cases in which PERC originally entered its June 3, 2011 order, viz., BP-2011-007 (entered October 5, 2011, related to CS-2010-255), BP-2011-005 (entered October 31, 2011, related to CS-2010-265), BP-2011-003 (entered October 14, 2011, related to CS-2010-266), BP-2011-004 (entered October 18, 2011, related to CS-2010-267), and BP-2011-006 (entered November 22, 2011, related to CS-2010-269). No notice of appeal was ever filed naming any one of these five orders.

We now hold that the notice of appeal filed on June 20, 2011, purportedly as to the June 3, 2011 order, should be deemed to have been filed prematurely, but effectively, as to each of the final orders determining the amounts of back pay DOC owes its employees.2 The finality of the later PERC orders is not in question. Florida Rule of Appellate Procedure 9.110(í) “allows a premature notice of appeal to vest jurisdiction in the appellate court when a final order is rendered before dismissal of the appeal.” State v. S.S., 8 So.3d 425, 426 (Fla. 2d DCA 2009). See also Thomas v. Suwannee Cnty., 734 So.2d 492, 497 (Fla. 1st DCA 1999) (“Only if the appeal remains premature when the court decides the question of its jurisdiction is dismissal appropriate.”); Benton v. Moore, 655 So.2d 1272, 1273 (Fla. 1st DCA *10051995) (same).3 Since PERC issued final orders before dismissal of the premature appeal,4 the prematurely filed notice of appeal became effective and conferred jurisdiction when PERC entered its final orders. Accordingly, we grant the motion to reconsider the order dismissing. As to all five employees’ cases, we will consider and decide the merits of DOC’s appeal in due course at a later time.

BENTON, C.J., DAVIS, and MARSTILLER, JJ., concur.


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