Thursday, September 30, 2010

Time Stamp On Notice of Appeal Is Presumptive & Not Conclusive - Florida Supreme Court

In Strax Rejuvenation And Aesthetics Institute, Inc. (SC10-57), the Florida Supreme Court "quashed the decision in Strax Rejuvenation And Aesthetics Institute, Inc. v. Shield, 24 So. 3d 666 (Fla. 4th DCA 2009), and approveed the decision in Weintraub v. Alter, 482 So. 2d 454 (Fla. 3d DCA 1986)."  This issue, and Strax, was previously discussed on this blog at the following links:  Clerk's Date Stamp Is Dispositive Of Filing Date Regardless Of Contrary Evidence and Does The Stamp On The Notice Of Appeal Control Appellate Jurisdiction?

The facts were described as follows:
Strax filed its notice of nonfinal appeal from the trial court's order denying a motion to dismiss and to compel arbitration. Because the clerk‟s time stamp indicated that the notice of appeal was filed August 21, 2009, which was one day late, the Fourth District issued an order to Strax to show cause why the appeal should not be dismissed. Strax responded to the show cause order and filed two affidavits, one from Strax's counsel and one from the owner of the courier service that delivered the notice to the courthouse for filing with the clerk of the circuit court. In the affidavit, Strax's counsel attests that on August 18, 2009, she placed the notice of appeal in her firm's “Broward County” filing box to be picked up by a courier service and filed in the Broward County courthouse on August 19, 2009. The owner of the courier service states in his affidavit that he picked up the notice of appeal from the law firm on August 19, 2009, and delivered it to the Broward County Clerk of Courts on that same day.
The Fourth District Court of Appeal concluded, however, that pursuant to Florida Rule of Civil Procedure 1.080(e), the clerk‟s time stamp “is dispositive on the issue of the date of filing a paper with the trial court.”
The Court concluded:
For many years the accepted view has been that filing is accomplished by simply placing the document in the hands of the proper officer. In 1941, we held that the filing of a pleading consists of simply placing it in the hands of the proper officer to be filed, and that the file marking is merely evidence of filing but is not essential to the validity of the document.
We conclude that the intent of rule 1.080(e), as amended in 1984, is to create a rebuttable presumption that the filing date is the date shown by the clerk's time stamp placed on the face of the document. Any other interpretation flies in the face of the stated intent for construction of the procedural rules.
While a bright-line rule that the clerk's stamp is dispositive of the filing date will certainly secure a speedy and inexpensive determination of the action, it will not necessarily secure a just determination.
Accordingly, we hold that Strax should be given an opportunity to prove that the notice of appeal was actually received by the clerk of the circuit court within the jurisdictional time frame applicable in this case.  Strax has not ultimately prevailed as the Court remanded the case to the "Fourth District Court of Appeal with directions that the district court remand the matter for an evidentiary hearing to determine if the notice of appeal was timely filed, consistent with the holdings set forth above. At the evidentiary hearing, Strax must overcome the presumption that the clerk's time stamp accurately indicates the date of filing by submission of competent, substantial evidence that the notice of appeal was actually received in the clerk's office within the filing deadline."

Should Strax overcome the burden and establish the notice of appeal was timely filed, it will then be required to prosecute the actual merits of its appeal.

Finally, the Court noted:
By our decision today, we do not suggest that practitioners should be unconcerned about a clerk‟s time stamp that indicates late filing of a document—especially when that document is a notice of appeal. The occasions when counsel should be required to rebut the presumption of late filing by submission of evidence should be extremely rare. Counsel are thus encouraged to continue to be vigilant in assuring that their documents are both timely received in the clerk's office and, to the extent practicable, timely stamped to protect the rights of their clients.
The should also resolve the conflict certified in Ocr-EDS, Inc. v. S & S Enterprises, Inc., - So. 3d -, 2010 WL 838164 (Fla. 5th DCA Mar. 12, 2010) and Soledispa v. La Salle Bank National Association (4D10-998).


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