LOUIS MARTIN, APPELLANT,
v.
RUTH VAN VLIET MARTIN, APPELLEE
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In a divorce appeal, the appellee wife moved to dismiss the husband's appeal for his failure to file a brief within the required time and to recover attorney's fees. The court denied dismissal, finding confusion between the appellant and his counsel about whether counsel was obligated to perfect the appeal, and allowed the appellant a reasonable opportunity to cure the default.
The court denied the motion to dismiss and allowed the appellant a reasonable opportunity to cure the default. The court held that counsel who appear before the appellate court cannot be relieved of their obligations unless the appellate court grants an order permitting withdrawal, and that the confusion between the appellant and his counsel regarding counsel's obligations warranted leniency rather than final dismissal.
“Counsel who once appear on behalf of litigants before this court are not relieved from performing all of the professional services which their appearance implies unless, upon good cause shown, an order of this court permits their withdrawal as counsel.”
Establishes that appellate counsel have mandatory duties that continue until formally relieved by court order.
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Join FLexlaw to unlock all legal intelligenceA decree of divorce was entered in favor of the appellee wife. The appellant husband failed to file his brief within the time required by rule. The ap…
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Based on the failure of the appellant husband to file his brief within the time provided by the rule, the appellee wife, in whose favor a decree of divorce was entered, has moved to dismiss this appeal and to be awarded reasonable attorney’s fees *650for the services of her attorneys on the appeal.
Appellant is in default as stated. Neither does it appear that the record on appeal has been filed. It does appear that some loose documents were sent to this court by the Clerk of the court below, but returned by the Clerk of this court because the same were not in the form required for filing.
There is nothing before this court excusing the failure of counsel for appellant to prosecute this appeal. A letter addressed to this court by the appellant in proper person indicates that his attorneys of record on this appeal have withdrawn from representation, and requests an extension of time in which to procure other counsel. We treat the letter as a motion to that effect. Supporting the motion is data further indicating that appellant has refused a request of his attorneys of record to withdraw from this appeal; further, that an order of the Circuit Court has been entered whereby the same counsel have been allowed to withdraw from representation of the defendant (appellant) in the circuit court which entered the decree appealed, but this order has no bearing on the representation here.
Counsel who once appear on behalf of litigants before this court are not relieved from performing all of the professional services which their appearance implies unless, upon good cause shown, an order of this court permits their withdrawal as counsel. No request for leave to withdraw having been lodged in this court by counsel of record for appellant, this court continues to recognize them as such. It follows that it is the abiding duty of such record counsel to perform all professional services necessary to perfect this appeal; that the only alternative to the performance of that duty is to take such steps as will result in the entry of an order permitting their withdrawal as counsel, but this will not preclude the appellant of his own volition from discharging his present counsel of record and employing substitute counsel herein.
We distinguish this case factually from Graham v. Thornton, Fla.App., 104 So.2d 95, because the appellant in proper person has furnished this court with data reflecting a genuine uncertainty on the part of appellant and his counsel of record, prior to the date appellant’s brief was due, as to whether said counsel were required to take further action on this appeal. Considering the record as a whole, we conclude that counsel did not deem themselves so obligated, while appellant considered that they were. In view of this confusion, we are not inclined to visit the consequences of final dismissal on the appellant without affording a reasonable opportunity to cure the default.
An order will be entered in accordance herewith. •
WIGGINTON, C. J., and STURGIS and CARROLL, DONALD IC., JJ., concur, cur.
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Citator
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Parada Holding Co. v. Asher Sulkin, 126 So. 2d 601 (Fla. 3d DCA 1961)…it a brief. Lamaneda v. State, 153 Fla. 835, 16 So. 2d 56. Likewise, an appellate court will decline to dismiss the appeal and allow the late filing of an appellant’s brief when good cause is shown for the delay. See Martin v. Martin, Fla.App.1960, 118 So. 2d 649. In the instant case we have not been presented with a good cause. Mere oversight of counsel in setting his time schedule for perfecting an appeal has previously been held to be an insufficient reason for denying a motion to dismiss the appeal. Nits…
Authorities Cited
- Graham v. Mammie Thornton, 104 So. 2d 95 (Fla. 1st DCA 1958)