IKE'S CARTER POOL AND MAINTENANCE CO., PETITIONER,
v.
GEOFFREY ROBERTS AND LILLIAN ROBERTS, RESPONDENTS
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Ike's Carter Pool sought a writ of certiorari to quash a circuit court order that dismissed its appeal for failure to timely file an appellant's brief. The District Court of Appeal held that the circuit court erred because the appellant had timely filed a motion for extension of time, which tolled the filing deadline, and the motion had never been ruled upon.
The court held that the circuit court's order quashing the appeal was a departure from the essential requirements of law because the appellant's motion for extension had tolled all time periods and the brief was not actually due. The quashing of the appeal was improper, and the proper remedy was for respondents to have requested that the circuit court rule on the pending motion.
[1] A motion for an extension of time filed before the deadline for an appellant's brief tolls all time periods until the motion is ruled upon.
[2] Quashing an appeal for failure to file an appellant's brief is improper when the brief was not yet due.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the order of the circuit court "quashing" the appeal is a departure from the essential requirements of law because the appellant's brief was not due and thus quashal of the appeal was not in order”
Establishes the core holding that the circuit court lacked proper basis to quash the appeal given the tolling effect of the pending extension motion
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Join FLexlaw to unlock all legal intelligencePetitioner Ike's Carter Pool failed to file its appellant's brief by the original deadline in the circuit court. Before the deadline expired, petition…
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DOWNEY, Judge.
By petition for writ of certiorari petitioner seeks an order of this court quashing a decision of the circuit court, entered in its appellate capacity, which granted respondents’ motion to quash petitioner’s appeal because petitioner failed to timely file an appellant’s brief.
We have reviewed the petition and respondents’ reply, together with the appendix presented, and hold that the order of the circuit court “quashing” the appeal is a departure from the essential requirements of law because the appellant’s brief was not due and thus quashal of the appeal was not in order. Before the time had expired for filing its brief, appellant filed in the circuit court a motion for an extension of time. That tolled all time periods until the motion was ruled upon. Florida Rule of Appellate Procedure 9.300(b). That motion has never been ruled upon. Although respondents’ impatience is understandable, the remedy was for them to have the circuit court rule on the pending motion. No doubt in the circuit court motions are not routinely sent to the judges by the clerk’s office but are called up for hearing by the parties. Of course, either party may progress the case by calling up motions for disposition.
Accordingly, the petition for writ of certiorari is granted and the order “quashing” the petitioner’s appeal in the circuit court is quashed and the cause is remanded with directions to reinstate the appeal and direct appellant therein to file its brief within a specified time.
ANSTEAD and GLICKSTEIN, JJ., concur. BY ORDER OF
THE COURT:
ORDERED that Petitioner (Appellant’s) May 16, 1983 Motion for Clarification of May 4, 1983 Opinion and Motion to Quash Circuit Court Order of May 9, 1983 are granted. The Circuit Court of Broward County is directed to enter an order granting the Petitioner (Appellant) fifteen (15) days to file appellant’s brief in the Circuit Court.
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Kuznik v. State, 604 So. 2d 37 (Fla. 2d DCA 1992)…cord and filed a brief. Nevertheless the circuit court, upon motion by the state, dismissed the appeal. Kuznik argues, and we agree, that the second motion for extension tolled the time to file his brief. Ike’s Carter Pool & Maintenance v. Roberts, 432 So. 2d 137 (Fla. 4th DCA 1983). Perhaps Kuznik might have pursued more aggressively a ruling on his motion, but dismissal was an [*38] unduly harsh sanction.2 The petition for writ of certiorari is granted and this case is remanded to circuit court with instru…