Perils of Appellate Practice

The Florida First District Court of Appeal recently dismissed an appeal in the cause of Tommy D. Lay II. v. KBR WC Claims, 1D19-4171 (LT 13-014638). There is no extensive written opinion that would come to the attention of those who watch the "Most Recent Written Decisions." Though, as an aside, everyone involved in Florida workers' compensation claims (e.g. risk managers, attorneys, adjusters) would be well advised to read those decisions. There is a tool there, and readers can sign up for notifications when new written decisions are released.
However, the Written Decisions are not the only decisions that the Court makes. Practically, the procedural decisions in each case far outnumber the rendered decisions that ultimately conclude an appellate review. The December 7, 2020 dismissal in Lay certainly is both such a procedural decision and an ultimate conclusion. And, it is but one of the procedural orders entered by the Court in this proceeding. 
The matter started in March 2013, the accident date according to a petition for benefits filed June 26, 2013 by an attorney on behalf of Mr. Lay. The OJCC Case Docket demonstrates significant filings over the years thereafter. The matter proceeded to trial more than once, which is not uncommon in the serial process of workers' compensation. See, e.g., Nelson & Co. v. Holtzclaw, 566 So. 2d 307, 309 (Fla. 1st DCA 1990)("Workers' compensation proceedings are, of necessity, often serial in nature"). A final order in 2016 was appealed to the First District, but in September 2017 the Court affirmed the trial judge.
New petitions were filed in 2018 and 2019. A trial was held October 15, 2019 and the final compensation order was entered October 21, 2019 concluding that Mr. Lay's claims were barred by the statute of limitations. The Florida workers' compensation statute of limitations was recently discussed in Statute of Repose Forecloses Claim. Essentially, the statute of limitations requires benefits to be claimed within certain time constraints. Failure to comply with that time limit may bar entitlement to those benefits. 
Shortly after that trial decision, Mr. Lay's attorney sought leave to withdraw as counsel, and the trial judge approved. On November 19, 2019, Mr. Lay filed a notice of appeal. The OJCC served the parties with an estimate of the cost of the record. The "record" in a case is a composite of all of the documents that were placed in evidence, transcripts of the testimony at trial, and other documents that are required by various rules. This written composite becomes the foundation upon which the Court review proceeds. It is incumbent upon the party seeking appellate review to either pay the cost for that compilation, or to seek excuse from that obligation from the trial judge. 
When Mr. Lay did not do either (pay or seek not to), the OJCC issued an order documenting that the deadline had passed without payment, on December 30, 2019. On February 26, 2020, the Court entered a procedural order compelling Mr. Lay "shall ensure the filing of the record or show cause why this appeal should not be dismissed for failure to obey the rules and orders of this Court." In essence, the Court's ability to proceed with review was being hindered by the absence of the record. 
On April 3, 2020, the Court acknowledged Mr. Lay's explanation and issued another order. This directed Mr. Lay "to pay for, and arrange for the transmission of, the record for this appeal within fifteen days of the date of this order." There were delays in the preparation of the record, but on June 9, 2020 it was filed with the Court and provided to the parties. 
In July, Mr. Lay asked the Court to submit additional information. This process is referred to as "supplementing the record," and the appropriate method for that is a motion to supplement the record. Rule 9.200(f). The Court granted that request on August 3, 2020. In doing so, the Court noted "Appellant is notified that his initial brief was due on July 9, 2020. Therefore, Appellant shall serve his initial brief no later than ten days after receiving the supplemental record." 
The Appellant's brief is a written document that describes how that party (the one seeking review) believes the trial judge departed from, or misconstrued the law. The brief is the party's opportunity to explain its contentions and position to the Court. It is the beginning of the path to the party's wish to have the trial judge instructed to do something different from her or his ordered outcome. The brief is critical in any successful appeal. Lawyers know the intricacies of form and process; those who represent themselves should strive to learn these also. But, even a clear, handwritten, document has been known to suffice in some instances. See Gideon v. Wainwright, 372 335 (1963).
On September 1, 2020, the Court entered another order (described in the Court docket) noting that the initial brief had not been filed in July as ordered. It provided Mr. Lay with a new deadline: "Appellant has failed to timely file the initial brief. Within 20 days from the date of this order, appellant shall file the initial brief or, alternatively, show cause why this appeal should not be dismissed." This is notable. The Court had instructed Mr. Lay to file his (by then tardy) brief in the August 3, 2020 order. 
On October 13, 2020, the Court entered an order denying Mr. Lay's most recent motion to again supplement the record. In this order, again, the Court ordered "Within ten days of the date of this order, Appellant shall file the initial brief or, alternatively, show cause why this appeal should not be dismissed." This marks the third time the Court instructed Mr. Lay to file his brief (July, September, October) and thus begin the written process of addressing the merits of his contention that the trial judge had erred. Notably, ten days from October 13, 2020 would expire before the end of October 2020. 
On October 26, 2020 Mr. Lay filed a document explaining why his brief had not been forthcoming as ordered. He apparently, again, asked for the record to be supplemented, which the Court again denied. The Court accepted the filing as a request for additional time, which it granted. The Court instructed in its October 27, 2020 order that 
"Appellant shall serve his initial brief no later than November 30, 2020. Failure to comply with this order shall result in this appeal being dismissed without further opportunity to be heard." 
Lawyers perhaps will note the subtle transition in the Court's language. The Court's orders previously had required ("shall"), but included alternative ("or"). The October order includes no such "or," and the warning is more specific in terms of what "shall" occur if the instruction is not followed. The last order includes a detriment or punishment ("shall" and "dismissed").
On the last day of November, Mr. Lay instead filed a request to excuse his untimeliness and to afford him more time to file the brief. The Court denied that request. And continued: 
"Pursuant to this Court’s warning by order dated October 27, 2020, that failure to serve the initial brief on or before November 30, 2020, would result in dismissal of this appeal without additional opportunity to be heard, and based on Appellant’s repeated requests to supplement the record with the same documents that have already been added to the record, this appeal is hereby dismissed."
There are multiple lessons that may be gleaned from the progression described herein. First, there is the reminder that workers' compensation cases may be litigated multiple times; they can be "serial" in nature. Second, it is not impossible for someone to represent themselves in litigation, but it is not necessarily easy either. Third, the process is, and tribunals are, patient and forgiving at times. However, there may be limits to the patience. Fourth, orders include conclusions but may also include instructions. Those who litigate, for themselves or others, should read carefully for instructions to follow. 
Finally, failure to follow instructions and rules can ultimately result in failure. While the litigation process strives to determine controversies on their merits, non-compliance with orders and rules can result in procedural decisions, such as this dismissal, that effectively foreclose any further consideration or determination. The various orders in this situation suggest that the injured worker was focused upon particular documents, and that they were in the record. Despite this, the worker/appellant repeatedly spent time striving to have those documents added to the record again ("repeated requests"). It is imperative that orders are read, to avoid such misunderstandings. A year after asking for review, the appellant's efforts came to conclusion. 
For those who litigate on their own behalf or for others, the lessons of Lay are pertinent and worthy of consideration. Litigation is expensive, stressful, and challenging. Failure to read and follow orders is likely to only make it more so, and such failure may result in dismissal or denial that is not what a party seeks. 
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    About The Author

    • Judge David Langham

      David Langham is the Deputy Chief Judge of Compensation Claims for the Florida Office of Judges of Compensation Claims at the Division of Administrative Hearings. He has been involved in workers’ compensation for over 25 years as an attorney, an adjudicator, and administrator. He has delivered hundreds of professional lectures, published numerous articles on workers’ compensation in a variety of publications, and is a frequent blogger on Florida Workers’ Compensation Adjudication. David is a founding director of the National Association of Workers’ Compensation Judiciary and the Professional Mediation Institute, and is involved in the Southern Association of Workers’ Compensation Administrators (SAWCA) and the International Association of Industrial Accident Boards and Commissions (IAIABC). He is a vocal advocate of leveraging technology and modernizing the dispute resolution processes of workers’ compensation.

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