SARA CALDWELL, PETITIONER,
v.
ESTATE OF JERRY L. MCDOWELL, RESPONDENT
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Sara Caldwell, appointed attorney for minor children, sought mandamus relief to compel the Fifth District Court of Appeal to reinstate her appeal after it was dismissed for failure to pay the statutory filing fee. The Florida Supreme Court held that Caldwell satisfied the indigency requirements under Florida Rule of Appellate Procedure 9.430 by filing an order of insolvency for the minor children, and granted the writ by directing reinstatement of the appeal.
The Court held that Caldwell satisfied the requirements of Florida Rule of Appellate Procedure 9.430 by filing an order of insolvency on behalf of the minor children, and therefore had a clear legal right to have the appellate court proceed with the appeal. Although the insolvency order did not declare Caldwell herself insolvent, it was apparent from the order's context that she was proceeding on behalf of the minors, satisfying the indigency requirements.
[1] Mandamus is an appropriate remedy when a petitioner has a clear legal right to the performance of a specific duty and no other legal recourse is available.
[2] An attorney appointed to represent minor children may proceed with an appeal on behalf of those children when an order of insolvency is rendered for the minors.
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Join FLexlaw to unlock all legal intelligence“It is well settled that mandamus will lie where the petitioner has a clear legal right to the performance of the particular duty sought and that he has no other legal method for obtaining relief.”
Establishes the standard for granting mandamus relief.
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Join FLexlaw to unlock all legal intelligenceCaldwell was appointed attorney for three minor children of Jerry McDowell and filed a petition for appointment of a guardian ad litem in circuit cour…
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PER CURIAM.
Sara Caldwell petitions for a writ of mandamus to compel the Fifth District Court of Appeal to reinstate her appeal. We have jurisdiction. Art. V, § 3(b)(8), Fla. Const. We grant the writ.
Sara Caldwell was appointed attorney for the minor children of Jerry L. McDowell: Sharina McDowell, Sean McDowell, and Shannon McDowell. She filed a petition for the appointment of a guardian ad litem in the circuit court, which was subsequently denied. She then appealed the denial to the Fifth District Court of Appeal. Caldwell did not pay the $100 statutory filing fee to the appellate court as required by Florida Rule of Appellate Procedure 9.110(b) and section 35.22(3), Florida Statutes (1985).
The Fifth District entered an order on November 21, 1986, stating that the appeal would be dismissed unless the filing fee was paid within twenty days. On December 11,1986, Caldwell filed with the district court a circuit court order determining that the children were insolvent minors for purposes of appeal. The order made no mention of Caldwell’s insolvency, but it was styled “Sara Caldwell, Appellant For: Sharina McDowell, Sean McDowell and Shannon McDowell.” On December 31, 1986, the clerk of the district court dismissed the appeal for failure to pay the statutory filing fee. Caldwell then petitioned this Court for a writ of mandamus to compel the Fifth District to reinstate her appeal on behalf of the minor children.
It is well settled that mandamus will lie where the petitioner has a clear legal right to the performance of the particular duty sought and that he has no other legal method for obtaining relief. Holland v. Wainwright, 499 So. 2d 21 (Fla. 1st DCA 1986). There is authority that mandamus is the appropriate remedy in this case. State ex rel. Gaines Construction Co. v. Pearson, 154 So. 2d 833 (Fla.1963); State ex rel. Hopps v. Horne, 75 Fla. 149, 77 So. 672 (1918).
Admittedly, Caldwell was listed as the appellant, and the order of insolvency did not declare her to be insolvent. Nevertheless, it was apparent from the order of insolvency that Caldwell was proceeding on behalf of the minor children. Consequently, we hold that Caldwell satisfied the requirements of Florida Rule of Appellate Procedure 9.430 which allows an indigent party to proceed with an appeal when an order of insolvency is rendered by the lower court. Once Caldwell filed the order of insolvency with the Fifth District, she had a clear legal right to have the appellate court proceed with the appeal as long as the court originally had jurisdiction to hear it.
Because we feel confident that the Fifth District Court of Appeal will reinstate Caldwell’s appeal on behalf of the minor children, we withhold issuance of the writ.
It is so ordered.
McDonald, C.J., and OVERTON, EHRLICH, SHAW, BARKETT, GRIMES and KOGAN, JJ., concur.
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Schmidt v. Crusoe, 878 So. 2d 361 (Fla. 2003)…e.g., Geffken v. Strickler, 778 So. 2d 975 (Fla.2001). In most cases, the petition filed in this Court was a petition for writ of mandamus and the petitioner’s case had already been dismissed in the district court. In Caldwell v. Estate of McDowell, 507 So. 2d 607 (Fla.1987), for example, this Court held that the petitioner had a clear legal right to be deemed insolvent and thus the district court had a duty to reinstate the appeal it had dismissed for failure to pay the filing fee. Later mandamus cases from…
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Fla. League OF Cities v. Smith, 607 So. 2d 397 (Fla. 1992)…is well settled that mandamus may be used only to enforce a right that is both clear and certain. E.g., Pino v. District Court of Appeal, 604 So. 2d 1232 (Fla.1992); Hatten v. State, 561 [*401] So. 2d 562 (Fla.1990); Caldwell v. Estate of McDowell, 507 So. 2d 607 (Fla.1987). Mandamus may not be used to establish the existence of such a right, but only to enforce a right already clearly and certainly established in the law. E.g., State ex rel. Glynn v. McNayr, 133 So. 2d 312 (Fla.1961); Florida Society of New…
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Elio Pino v. Dist. Court OF Appeal, 604 So. 2d 1232 (Fla. 1992)…he final summary judgment could be dismissed. Mandamus is an appropriate remedy where the petitioner has a clear legal right to the performance of a particular duty and has no other legal method for obtaining relief. Caldwell v. Estate of McDowell, 507 So. 2d 607 (Fla.1987). Mandamus is properly used to test the correctness of a determination of no jurisdiction by a court of lesser jurisdiction. State ex rel. Gaines Constr. Co. v. Pearson, 154 So. 2d 833 (Fla.1963). Here, the Third District Court of Appeal w…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State of Fla. ex rel. Gaines Constr. Co. v. Tillman Pearson, 154 So. 2d 833 (Fla. 1963)
- State of Fla. ex rel. John L. Hopps v. Mallory F. Horne, 75 Fla. 149 (Fla. 1918)
- Bush Wade Holland v. L.L. Wainwright, 499 So. 2d 21 (Fla. 1st DCA 1986)