RANDY IRVIN AND CATHY IRVIN, PETITIONERS,
v.
JIMMIE (JAMEY) WILLIAMS, L.H. MOORE AND HIS WIFE, BETTY MOORE, RESPONDENTS
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The Florida District Court of Appeal granted a writ of certiorari and quashed a circuit court's order dismissing petitioners' appeal based solely on an untimely brief filed approximately two and one-half weeks late. The court held that dismissal is an extreme sanction reserved for flagrant violations of appellate rules, and a brief that is merely late, without more, does not warrant such severe punishment.
Dismissal is an extreme sanction reserved for the most flagrant violations of appellate rules and is not warranted by the mere failure to file a brief on time. The untimely filing in this case, accompanied by a good reason (substitution of counsel) and a motion for extension, did not justify dismissal of the appeal.
[1] Dismissal of an appeal is an extreme sanction reserved for the most flagrant violations of appellate rules.
[2] The failure to file an initial brief on time, without more, is not a serious enough violation to warrant dismissal of an appeal.
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Join FLexlaw to unlock all legal intelligence“A sanction imposed under rule 9.410 of the Florida Rules of Appellate Procedure must be commensurate with the violation. Dismissal is an extreme sanction and, as such, it is reserved for the most flagrant violations of the appellate rules.”
Establishes the governing legal standard that sanctions must be proportionate and dismissal is only appropriate for flagrant violations
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Join FLexlaw to unlock all legal intelligencePetitioners' initial attorney was suspended from practice of law. They retained new counsel shortly before the appellate brief deadline. The new attor…
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PER CURIAM.
We grant the petition for writ of certiorari in this case and quash the order of the circuit court dismissing the petitioners’ appeal from the county court. The appeal was dismissed on the ground that the petitioners’ brief was untimely, but there is no indication that such a severe sanction was warranted.
The petitioners’ first attorney had been suspended from the practice of law, and they did not secure another attorney until shortly before the initial brief was due. The hew attorney filed a motion for extension of time stating that he had just been retained and that, because of a personal illness, he would not be able to complete the brief by the due date. The motion also alleged that the respondents would not be prejudiced by the extension and that coun sel for the respondents had been notified of the motion but had not responded. The petitioners’ initial brief was filed in the circuit court approximately two and one-half weeks after the due date. Subsequently, the circuit court entered an order dismissing the appeal on the ground that initial brief was untimely.
A sanction imposed under rule 9.410 of the Florida Rules of Appellate Procedure must be commensurate with the violation. Dismissal is an extreme sanction and, as such, it is reserved for the most flagrant violations of the appellate rules. See Swicegood v. Department of Transportation, 394 So. 2d 1111 (Fla. 1st DCA 1981) (holding that dismissal was proper because counsel had failed to file a brief, failed to request an extension of time, and failed to explain his conduct in response to an order of the court); McClain v. Florida Power & Light Co., 523 So. 2d 1245 (Fla. 1st DCA 1988) (holding that dismissal was proper because counsel had continually failed to timely prosecute his client’s appeals, despite reprimands by the court and the imposition of monetary sanctions). Without more, however, the failure to file a brief on time is not a serious enough violation to warrant dismissal of an appeal. See Leonard v. First Union Nat’l Bank of Florida, 685 So. 2d 98 (Fla. 3d DCA 1997); Krebs v. State, 588 So. 2d 38 (Fla. 5th DCA 1991).
In the present case, the petitioners’ initial brief was late by only two and one-half weeks. The petitioners had a good reason to request additional time to retain substitute counsel and they had not previously requested an extension for any other reason. There is no evidence the delay was prejudicial or that it interfered with the orderly progress of the appeal. Moreover, the order contains no finding that explains why the court elected to impose such a severe sanction. We conclude that under these circumstances, the dismissal of the petitioners’ appeal was a departure from the essential requirements of law.
Certiorari granted.
BARFIELD, C.J., VAN NORTWICK and PADOVANO, JJ., CONCUR.
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Lindsey v. Merrill King and Priscilla King, 894 So. 2d 1058 (Fla. 1st DCA 2005)…imposed under rule 9.410 of the Florida Rules of Appellate Procedure must be commensurate with the violation. Dismissal is an extreme sanction and, as such, it is reserved for the most flagrant violations of the appellate rules.” Irvin v. Williams, 736 So. 2d 705, 705 (Fla. 1st DCA 1999) (citing Swicegood v. Dep’t of Transp., 394 So. 2d 1111 (Fla. 1st DCA 1981)). Generally, appellate courts are reluctant to impose the harsh sanction of dismissal, as it results in “ ‘the sins of the attorney beihg visited upo…
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Nicaragua Trader Corp. v. Alejo Fla. Props., LLC, 19 So. 3d 395 (Fla. 3d DCA 2009)…ounty Line Chiropratic Ctr., 8 So. 3d 1258 (Fla. 4th DCA 2009); Lindsey v. King, 894 So. 2d 1058 (Fla. 1st DCA 2005); Holder, 867 So. 2d at 622; United Auto. Ins. Co. v. Total Rehab. & Med. Ctr., 870 So. 2d 866 (Fla. 3d DCA 2004); Irvin v. Williams, 736 So. 2d 705 (Fla. 1st DCA 1999). Here, the tenant’s initial motion for reconsideration tolled the time for filing its brief until such time as the court issued a ruling. The court never ruled on this motion. Therefore, the tenant’s brief was filed before it wa…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Krebs v. State, 588 So. 2d 38 (Fla. 5th DCA 1991)
- Swicegood v. Fla. Dep't of Transp., 394 So. 2d 1111 (Fla. 1st DCA 1981)
- McCLAIN v. Fla. Power & Light Co., 523 So. 2d 1245 (Fla. 1st DCA 1988)
- Leonard v. First Union Nat'l Bank OF Fla., 685 So. 2d 98 (Fla. 3d DCA 1997)