08-3995 ELIS E. SAN PEDRO, v. TACO BELL/YUM! BRANDS and GALLAGHER BASSETT

State: Florida

Court: Florida First District Court

Docket No: 08-3995

Case Date: 05/19/2009

Preview:IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

ELIS E. SAN PEDRO, Appellant, v. TACO BELL/YUM! BRANDS and GALLAGHER BASSETT, Appellees. _____________________________/ Opinion filed May 19, 2009.

CASE NO. 1D08-3995

An appeal from an order of the Judge of Compensation Claims. Gerardo Castiello, Judge. Date of Accident: October 6, 2005. Richard J. Dolan, II, Hialeah, and Bill McCabe, Longwood, for Appellant. Ara A. Gechijian and Stephen A. Smith of Pallo, Marks, Hernandez, Gechijian & DeMay, P.A., Palm Beach Gardens, for Appellees.

PER CURIAM. Claimant appeals the Judge of Compensation Claims' (JCC) dismissal of his petition for benefits based on the Employer/Carrier's motion for summary final order. For the following reasons, we reverse.

The opposing party is required to file a response to a motion for summary final order within 30 days of service, plus five days for mailing. See Fla. Admin. Code R. 60Q-6.108(6), -6.120(3). Here, the motion for summary final order

considered by the JCC included a May 19, 2008, certificate of service date. Evidence in the record indicates that appellant may not have received the motion for summary final order with an appropriate certificate of service. In Claimant's timely filed motion to vacate the JCC's order of dismissal, she alleged she did not receive a copy of the motion for summary final order with the May 19, 2008, certificate of service date until June 24, 2008, more than 35 days after May 19, 2008. The JCC failed to address the motion to vacate. Chapter 440, Florida Statutes, and basic due process considerations require a party be given proper notice. Cf. City of Hollywood v. Pisseri, 504 So. 2d 1262, 1264 (Fla. 1st DCA 1986) (holding that affirmative notice of a hearing must be demonstrated). Without proper notice, a party is not afforded due process and a meaningful opportunity to participate. See J.B. v. Fla. Dep't of Children & Family Servs., 768 So. 2d 1060, 1062 (Fla. 2000). Here, if Claimant's allegation is correct, she was not afforded proper notice of the motion for summary final order and a meaningful opportunity to respond to

2

the motion. The JCC's order is reversed and remanded with directions to consider Claimant's motion to vacate on its merits. REVERSED and REMANDED for proceedings consistent with this opinion. WOLF, BENTON and BROWNING, JJ., CONCUR.

3

Download 08-3995 ELIS E. SAN PEDRO, v. TACO BELL/YUM! BRANDS and GALLAGHER BASSETT.pdf