MARY TUCKER, PETITIONER,
v.
CHARLES D. FRANKEN, P.A., RESPONDENT
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Mary Tucker sought a writ of certiorari after a circuit court dismissed her appeal for failure to timely file an initial brief. The Fourth District granted the petition in part, holding that the circuit court violated the essential requirements of law by dismissing the appeal without first providing proper notice and a fair opportunity to cure the deficiency.
The petition for writ of certiorari is granted in part. The dismissal of Tucker's appeal is quashed and the case is remanded for the circuit court to reinstate the appeal. The court held that dismissal is an extreme sanction that should not be imposed without first giving the appellant ten days to file the brief and fair warning in advance that failure to file may result in dismissal.
[1] A circuit court, sitting in its appellate capacity, may not dismiss an appeal for failure to timely file an initial brief without providing the appellant with proper noti…
[2] Dismissal of an appeal for failure to timely file an initial brief is an extreme sanction that should not be imposed without first giving the appellant fair warning that…
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 filing of briefs is not jurisdictional and the appellate rules allow for extensions of time for most steps in the appellate process, including the filing of briefs. Dismissal is a sanction which the appellate court should not have imposed without first giving Boulder ten days to file its initial brief, along with fair warning in advance that a failure to file the brief by the deadline may subject its appeal to dismissal.”
Establishes the standard that dismissal requires prior notice and opportunity to cure, and that filing briefs is not jurisdictional
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Join FLexlaw to unlock all legal intelligenceTucker timely filed a notice of appeal in circuit court following the county court's denial of her motion to set aside a default judgment. Approximate…
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Petitioner, Mary Tucker, timely petitions this court for a second-tier writ of certiorari, following the dismissal of her appeal by the circuit court, sitting in its appellate capacity, for failure to timely file an initial brief within fifteen days of filing her notice of appeal. See Fla. R.App. P. 9.130 (“Appellant’s initial brief ... shall be served within 15 days of filing the notice”). As the petitioner was not given proper notice of the court’s intent to dismiss, as required under Florida Rule of Appellate Procedure 9.140, we grant the petition, in part. We deny the petition as to the remaining claim without discussion.
Following the county court’s denial of petitioner’s motion to set aside default judgment, she timely filed a notice of ap*1208peal in the circuit court. When approximately one month passed and petitioner did not file an initial brief, the respondent moved to dismiss the appeal for not following the appellate rules. One week later, petitioner filed a motion for an extension of time. A hearing was held on the motion to dismiss and, that same day, the court entered an order dismissing the appeal. Petitioner, however, was not given notice by the court at any point in time that her appeal was in jeopardy of being dismissed for lack of filing an initial brief.
In Boulder Management, Inc. v. Charts Healing Ministries, 931 So.2d 1058, 1059 (Fla. 4th DCA 2006), we granted certiorari when the circuit court, sitting in its appellate capacity, dismissed an appeal based upon Boulder’s failure to timely file an initial brief. Although Boulder moved for an extension of time to file the initial brief two weeks after the brief was due, we explained that, “the filing of briefs is not jurisdictional and the appellate rules allow for extensions of time for most steps in the appellate process, including the filing of briefs. Dismissal is a sanction which the appellate court should not have imposed without first giving Boulder ten days to file its initial brief, along with fair warning in advance that a failure to file the brief by the deadline may subject its appeal to dismissal.” Id. (emphasis added). We held that the circuit court departed from the essential requirements of law and similarly find the same here.
Concerning sanctions, Florida courts generally require that a sanction be commensurate with the violation, and deem a dismissal an extreme sanction justified only for the 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 remand for the circuit court to reinstate the appeal. See Mirage Pools, Inc. v. Dewitt, 757 So.2d 1280 (Fla. 4th DCA 2000).
Petition for writ of certiorari granted in part; denied in part.
GROSS, C.J., HAZOURI and GERBER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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United Auto. Ins. Co. v. Millennium Radiology, LLC, 77 So. 3d 1284 (Fla. 4th DCA 2012)…al from the corrected final judgment. We agree that, based on the circumstances in this case, dismissal of the appeal was a departure from the essential requirements of law, and United was denied due process. See Tucker v. Charles D. Franken, P.A., 62 So. 3d 1207 (Fla. 4th DCA 2011); Rupp v. Dep’t of Health, 963 So. 2d 790, 793 (Fla. 3d DCA 2007) (recognizing “Florida law is clear that the law does not impose penalties upon an individual for failing to take certain actions which it is physically impossible f…
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Varnado v. The Rakusin LAW Firm, 88 So. 3d 428 (Fla. 4th DCA 2012)…ure to file a brief, without providing ten days’ notice as required before sanctions may be imposed. See Fla. RApp. P. 9.410. Respondent concedes that the court departed from the essential requirements of law. See Tucker v. Charles D. Franken, P.A., 62 So. 3d 1207, 1208 (Fla. 4th DCA 2011). See also United Auto. Ins. Co. v. Total Rehab & Med. Ctr., 870 So. 2d 866, 870 (Fla. 3d DCA 2004). This matter is remanded to the circuit court for further proceedings consistent with the foregoing cases. WARNER, POLEN a…
Authorities Cited
- Mercer v. J.D. Raine, Sr., 443 So. 2d 944 (Fla. 1983)
- Nicaragua Trader Corp. v. Alejo Fla. Props., LLC, 19 So. 3d 395 (Fla. 3d DCA 2009)
- United Auto. Ins. Co. v. Cnty. Line Chiropractic Ctr., 8 So. 3d 1258 (Fla. 4th DCA 2009)
- Mirage Pools, Inc. v. Dewitt, 757 So. 2d 1280 (Fla. 4th DCA 2000)
- Boulder Mgmt., Inc. v. The Charis Healing Ministries & The Rev. Paul J. Schweinler, 931 So. 2d 1058 (Fla. 4th DCA 2006)