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443 So. 2d 149

Docket No. AR-345.

Threat v. Rogers

Aaron THREAT, Appellant, v. J. Carlisle ROGERS and Glenn Gentry, Appellees.

District Court of Appeal of Florida

Decided December 8, 1983.

District Court of Appeal of Florida · decided 1983-12-08

Key passage — most relied on by later courts

“discretion to determine whether the facts of a particular case constitute excusable neglect, mistake or inadvertence, so as to support a motion to vacate a compensation order.”

quoted by 2 later decisions, including Vazquez v. Wendy's, Bowe v. McDONALD'S

“[a] deputy commissioner has no authority to vacate an order which has become final, although he does have the authority, within the period before the order becomes final, to correct errors arising from inadvertence, mistake, or excusable neglect”

quoted by 1 later decision, including 655 So. 2d 104 - Millinger v. BROWARD CO. MENTAL HEALTH

Relies on Acosta Roofing Co. v. Gillyard · 386 So. 2d 883 - Morgan Yacht Corp. v. Edwards · 361 So. 2d 408 - Farrell v. Amica Mut. Ins. Co.

Good law ✅— No negative treatment on recordhow we know

Decided 1983-12-08

How this case has been cited

Cited by 9 later decisions — most recently May 2006

9 state decisions

50198319902000decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

¶1Irvin A. Meyers and Sherry L. Davis of Meyers & Mooney, Orlando, for appellant.

¶2Steven A. Rissman of Cooper & Rissman, Orlando, for appellees.

¶3PER CURIAM.

¶4This cause is before us to review the order of the deputy commissioner vacating, within the 30-day period before it became final, a prior compensation order. We exercise our discretionary jurisdiction to review the order by certiorari, and affirm.

¶5Claimant Aaron Threat injured his arm while pruning trees in a grove in Okahumpka, Florida. An amended claim for benefits was filed, naming J. Carlisle Rogers and Glenn Gentry as employers. Because of an apparent miscommunication between counsel for Mr. Rogers and the deputy commissioner's office, Mr. Rogers did not appear at the hearing held on the claim, subsequent to which the deputy issued his order, dated January 13, 1983, finding claimant entitled to TTD benefits, PTD benefits, and medical expenses, and awarding claimant's attorney a fee under the "bad faith" provision of Section 440.34(3), Florida Statutes. Within the 30-day period before this order became final, Mr. Rogers' attorney filed a motion to vacate the order, with supporting affidavits, asserting that Mr. Rogers' failure to appear at the compensation hearing was the result of miscommunication and excusable neglect, and *150 that Mr. Rogers had a meritorious defense to the claim for compensation, in that he does not own the grove property in question and never employed claimant. On February 4, 1983, the deputy entered an order granting the motion to vacate and setting aside his prior order.

¶6Although the deputy commissioner has no authority to vacate an order which has become final, Farrell v. Amica Mutual Insurance Co.,361 So.2d 408 (Fla. 1978), we hold that the deputy has the authority, within the period before the order becomes final, to correct errors arising from inadvertence, mistake, or excusable neglect, as in the case at issue. See, Acosta Roofing Co. v. Gillyard,402 So.2d 1321 (Fla. 1st DCA 1981), in which this court found such authority in Section 440.25(4)(a), Florida Statutes. See also, Morgan Yacht Corporation v. Edwards,386 So.2d 883 (Fla. 1st DCA 1980), which found that Section 440.33(1), Florida Statutes, authorized the deputy to rescind his approval of settlement stipulations upon a finding of fraud.

¶7It is within the deputy's discretion to determine whether the facts of a particular case constitute excusable neglect, mistake or inadvertence, so as to support a motion to vacate a compensation order. Appellants have not shown an abuse of discretion by the deputy; his order granting appellee's motion to vacate the prior compensation order is therefore affirmed.

¶8ROBERT P. SMITH, Jr., BOOTH and WIGGINTON, JJ., concur.

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