UNITED AUTOMOBILE INSURANCE COMPANY, PETITIONER,
v.
COUNTY LINE CHIROPRACTIC CENTER A/A/O ANASA DEXTER, RESPONDENT
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
United Automobile Insurance Company sought a second-tier writ of certiorari to challenge a circuit court's dismissal of its appeal for failure to timely file an initial brief. The Fourth DCA granted the petition, finding that the circuit court violated procedural due process by mailing the notice without allowing adequate time for delivery, and that dismissal was an inappropriate extreme remedy.
The court granted the petition and quashed the dismissal order, holding that the circuit court violated clearly-established principles of law by providing notice via mail that did not allow adequate time for ordinary delivery before the deadline, and that dismissal is an extreme remedy inappropriate when the violation does not constitute willful misconduct or inexcusable neglect.
[1] A circuit court's dismissal of an appeal for failure to timely file an initial brief may constitute a departure from the essential requirements of law resulting in a misc…
[2] Florida Rule of Appellate Procedure 9.410 requires ten days' notice before a court can impose a sanction such as dismissal of an appeal.
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“Florida Rule of Appellate Procedure 9.410 entitles a party to ten days' notice before the court can impose a sanction such as dismissal of the appeal.”
Establishes the procedural due process requirement that was violated
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceCounty Line Chiropractic Center sued United for breach of contract in a personal injury protection case and obtained a $45,000 judgment. United timely…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Miscarriage Of Justice cases and more on FLexlaw
Petitioner United Automobile Insurance Company (United) brought this second-tier petition for writ of certiorari, challenging a Broward Circuit Court order, rendered in appellate capacity, which dismissed its appeal for failure to timely file an initial brief after multiple prior extensions of time. We grant the petition and quash the order of dismissal.
This case commenced when respondent County Line Chiropractic Center sued United in Broward County Court for breach of contract in a personal injury protection case, and obtained a final judgment against United for $45,000. United timely appealed to the Broward Circuit Court, and moved for extensions of time to file its initial brief five times from June 2008 to October 2008. The motions were granted. The sixth motion for extension of time, however, was denied by the circuit court in an order entered on December 5, 2008, finding an abuse of the appellate process and unnecessary delay. The circuit court directed United to file an initial brief within ten days, i.e., by December 15, 2008, or suffer dismissal of its appeal. On December 17, 2008, United filed a motion for relief from the December 5, 2008 order, alleging that it did not receive the order until after the ten-day period had expired, and that insufficient notice had been given. United filed its initial brief along with the motion for relief. The circuit court denied United’s motion for relief. The court subsequently dismissed the appeal for failure to file the brief within the ten-day period provided in the December 5, 2008 order.
Second-tier certiorari in this court calls for a determination of whether the circuit court afforded procedural due process and whether it applied the correct law. Haines City Cmty. Dev. v. Heggs, 658 So.2d 523 (Fla.1995). It is reserved for cases in which there has been a violation of a clearly-established principle of law resulting in a miscarriage of justice. Ivey v. Allstate Ins. Co., 774 So.2d 679 (Fla.2000).
We find that petitioner has made the required demonstration of a violation of clearly-established principle of law and resulting miscarriage of justice in this case. Florida Rule of Appellate Procedure 9.410 entitles a party to ten days’ notice before the court can impose a sanction such as dismissal of the appeal. The circuit court order in this case providing the ten days’ notice was mailed to petitioner, the practical result of which was that, with time taken for ordinary mail delivery, peti*1260tioner had less than ten days’ notice. As well, petitioner’s counsel advised that he did not receive the order within the ten-day period.
"While we understand the frustration of the lower tribunal, especially in these times of limited judicial resources, dismissal is an extreme remedy reserved for the most flagrant violations of the rules. Irvin v. Williams, 736 So.2d 705 (Fla. 1st DCA 1999). Public policy favors courts deciding controversies on their merits, even when an untimely brief is filed. See United Auto. Ins. Co. v. Total Rehab & Med. Ctr., 870 So.2d 866 (Fla. 3d DCA 2004).
The harsh sanction of dismissal of the appeal is inappropriate in this case, as this was not a case of extreme, willful misconduct by petitioner or counsel, or an intentional disregard of court orders or appellate rules rising to the level of inexcusable neglect. See Kaloyios v. Regal Homes of Cent. Fla., Inc., 967 So.2d 1035 (Fla. 5th DCA 2007); Gillespie v. City of Destin, 946 So.2d 1195 (Fla. 1st DCA 2006).
While the appellate division of the circuit court has discretion in managing its docket, we conclude that petitioner has demonstrated a departure from the essential requirements of law resulting in a miscarriage of justice in this case. Therefore, we quash the order of dismissal and remand to the circuit court for further appellate proceedings.
STEVENSON, DAMOORGIAN and CIKLIN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Nicaragua Trader Corp. v. Alejo Fla. Props., LLC, 19 So. 3d 395 (Fla. 3d DCA 2009)…he most flagrant violations. See Mercer v. Raine, 443 So. 2d 944 (Fla.1983). The failure timely to file a brief has not been deemed serious enough to warrant the sanction of dismissal. See e.g., United Auto. Ins. Co. v. County 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,…
-
Tucker v. Charles D. Franken, P.A., 62 So. 3d 1207 (Fla. 4th DCA 2011)…e most flagrant violations. See Mercer v. Raine, 443 So. 2d 944 (Fla.1983). The failure timely to file a brief has not been deemed serious enough to warrant the sanction of dismissal. See e.g., United Auto. Ins. Co. v. County Line Chiropractic Ctr., 8 So. 3d 1258 (Fla. 4th DCA 2009) [citations omitted]. Nicaragua Trader Corp. v. Alejo Fla. Props., LLC, 19 So. 3d 395, 397 (Fla. 3d DCA 2009). Accordingly, we grant the petition to the extent that we quash the order dismissing Tucker’s notice of appeal and rem…
-
Fla. Cap. Mgmt., LLC v. Town OF Palm Beach, 114 So. 3d 389 (Fla. 4th DCA 2013)…ed the correct law to the facts of this case, as the intentional disregard of a court order provides justification for dismissal of an appeal for failure to timely file the initial brief. United Auto. Ins. Co. v. [*391] Cnty. Line Chiropractic Ctr., 8 So. 3d 1258, 1260 (Fla. 4th DCA 2009). The petitioner failed to respond to the circuit court’s March 18, 2012 order to show cause after failing to either file the initial brief or again move for extension of time to do so. As a result, the circuit court was aut…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Haines City Cmty. Dev. v. Leila Heggs, 658 So. 2d 523 (Fla. 1995)
- Farren Ivey v. Allstate Ins. Co., 774 So. 2d 679 (Fla. 2000)
- Pascual v. State, 870 So. 2d 866 (Fla. 3d DCA 2004)
- Gillespie v. The City OF Destin, 946 So. 2d 1195 (Fla. 1st DCA 2006)
- Irvin v. Jimmie (Jamey) Williams, 736 So. 2d 705 (Fla. 1st DCA 1999)
- Kaloyios v. Regal Homes OF Cent. Fla., Inc., 967 So. 2d 1035 (Fla. 5th DCA 2007)