Counsel Has Duty to Have Sufficient Procedures and Protocols in Place to Ensure Timely Notice of Appealable Orders

Emerald Coast Utilities Authority v. Bear Marcus Point LLC, 2017 WL 4448526, First District Court of Appeal, October 6, 2017.

According to the First District Court of Appeals, this would include checking the online court docket to determine if an appealable order had been entered, but not received via e-service. 

Emerald Coast Utilities (“Emerald”) and Bear Marcus Point (“Bear Marcus”) were involved in eminent domain proceedings. Bear Marcus filed a Motion for Attorney’s Fees and a hearing was held in January, 2013. The Court requested proposed orders from each of the parties. After they were submitted, Bear Marcus’s counsel had a protocol where an assigned paralegal would check the court’s website every three weeks to see if the court had taken any action or entered an order. After noting several months had passed with no docket entry reflecting a ruling, Bear Marcus’s counsel called Emerald’s counsel and suggested that they file a joint motion for status conference to make sure the case had not slipped through the cracks. Before the status conference occurred, the orders were received via e-service by the Bear Marcus’ attorneys and paralegal. When the fees were not paid within the 30 days as ordered by the Court, the paralegal contacted Emerald’s counsel whose office requested copies of the order.

On May 12, 2014, Emerald filed a Motion for Relief from the order asserting that it did not receive a copy of the order until after the expiration of the time to appeal.

At the hearing on the Motion for Relief, the Clerk’s office presented testimony that the email was sent and that its IT log reflected it had been received by the primary and secondary addresses for the designated attorneys – which included Emerald’s counsel. Emerald’s counsel presented testimony from its IT vendor who explained that a system had been installed and configured to delete any email the server concluded was spam. The IT vendor testified that he had advised Emerald’s counsel against such a protocol but that counsel did not want to spend the “extra money”. It was not possible to determine if Emerald counsel’s received the email from the Clerk’s office because the firm did not maintain logs, archive or back up emails.  Emerald’s counsel argued that the missed deadline was a result of “excusable neglect.”

The trial court was unpersuaded by Emerald’s arguments and denied the Motion for Relief from the order and did not set aside the judgment. Under Florida Rule of Civil Procedure 1.540 (b), Florida courts have discretion to set aside a final judgment, decree, order or proceedings based on “mistake, inadvertence, surprise or excusable neglect”. Emerald appealed.

Florida’s First District Court of Appeal affirmed the trial court’s ruling on the Motion for Relief. Most notably, the District Court reproved Emerald’s counsel for “making the conscious decision to use a defective email system” and neglecting to actively check the docket. The First District held that Emerald’s counsel had a duty to actively check the court’s electronic docket where the parties knew that the trial court would be issuing a final order subject to appeal within the jurisdictional time limits.