The Risk Manager, Spring 2018

In Emerald Coast Utilities Authority v. Bear Marcus Pointe, LLC (Fla. Dist. Court of Appeals, 1st Dist. 8/10/2017) the appellant’s law firm, Odom & Barlow, requested the trial judge to re-enter an order assessing attorney’s fees so that it could make a timely appeal. The firm claimed that it never received the order.

At the hearing the clerk of the court’s IT director testified:

[T]hat the log from the clerk’s e-service system indicated that emails containing the order were sent to the primary and secondary email addresses designated by appellant’s attorneys at 7:28 p.m. on March 20, 2014. The clerk’s email server contacted the email server for the domain of these addresses and handed off the messages to the recipient server. The IT director explained that if the email had not been accepted by the recipient server, an error message would have been generated notifying the clerk’s office that the email had not been delivered. The log contained no such error message. Davis did not know what happened after the email was accepted by the recipient server.

An IT consultant testified that he provided consulting services for the law firm. In 2011 the firm installed its Microsoft Exchange server with a built-in email filtering system. This system was designed to drop and permanently delete emails identified as spam without alerting the recipient that the email was deleted. It did not create logs of received email.

The consultant advised that the firm’s email system should not operate to permanently drop and delete emails because the spam filtering on the server was unreliable and risked false positives for otherwise substantive emails. He suggested alternatives to fix this problem, but the firm did not take this advice to save money.

Other expert testimony was offered to the effect that it was more than likely the emails were received by the firm and that it was unusual for a business not to have systems to produce logs of email received and to use a system with “absolutely no back up or disaster recovery procedures.”

The appellate court reviewed this record and found that:

• Although appellant claims that its counsel received no notice of the order assessing attorneys’ fees until after expiration of the time to appeal, Lendy Davis, William Hankins, and James Todd testified that they reviewed emails logs from the clerk’s server and concluded that the emails attaching the order assessing attorneys’ fees were electronically served by the clerk’s office on March 20, 2014, and received without error by Odom & Barlow’s server. …. Based on this evidence, the trial court could conclude that the order assessing attorneys’ fees was received by Odom & Barlow’s server, which was the equivalent of placing a physical copy of the order in a mailbox.
• [T]he trial court could conclude that Odom & Barlow made a conscious decision to use a defective email system without any safeguards or oversight in order to save money. Such a decision cannot constitute excusable neglect.
• Finally, testimony was presented that opposing 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 any orders. If Odom & Barlow had a similar procedure in place, the firm would have received notice of the order assessing attorneys’ fees in time to appeal.
• The neglect of Odom & Barlow’s duty to actively check the court’s electronic docket was not excusable. See Yeschick v. Mineta, 675 F.3d 622, 629-30 (6th Cir. 2012) (holding that counsel’s neglect in not checking the docket was not excusable because the parties had an affirmative duty to monitor the docket to keep apprised of the entry of orders that they may wish to appeal); Robinson v. Wix Filtration Corp. LLC, 599 F.3d 403, 413 (4th Cir. 2010) (holding that counsel’s computer problems did not constitute excusable neglect where counsel failed to actively monitor the court’s docket or find some other means by which to stay informed of docket activity).
• In short, there was an absence of “any meaningful procedure in place that, if followed, would have avoided the unfortunate events that resulted in a significant judgment against” appellant. Hornblower, 932 So. 2d at 406. Accordingly, the trial court did not abuse its discretion.”