JAMES WARD, APPELLANT,
v.
L. T. FOUNTAIN, APPELLEE
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An appellant's appeal was dismissed for failure to timely file the record on appeal in the appellate court within the prescribed rule deadline. The court held that although the trial court clerk's mistake may have contributed to the delay, the appellant bears ultimate responsibility for supervising the appeal's progress and must take affirmative steps to obtain time extensions rather than relying passively on the clerk's performance.
No. The appellant bears ultimate responsibility for supervising the orderly progress of the appeal and must take timely affirmative action to obtain extensions of time based on a showing of good cause. A clerk's mistake does not excuse the appellant's failure to comply with procedural rules, and the appellant cannot rely passively on the clerk's performance. The dismissal of the appeal is warranted.
“the appellant must supervise the orderly progress of the cause and take all steps necessary to insure its proper and expeditious presentation to this court for disposition”
Establishes that the appellant bears responsibility for managing the appeal, not the clerk
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Join FLexlaw to unlock all legal intelligenceAppellant filed an appeal but failed to file the record on appeal with the appellate court within the time specified by Florida Appellate Rule 3.6(b).…
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The appellee, with notice to appellant and well after the expiration of the time specified by Florida Appellate Rule 3.6, subd. b, 31 F.S.A., for the filing in this court of the record on appeal, moved to dismiss the appeal for failure so to do. Appellant did not file a response to said motion, nor does it appear that appellant at any time sought an order extending the time for compliance as available under the rules upon a showing of good cause, and after the lapse of more than thirty days from the date it was filed we entered an order granting the motion and dismissing the appeal.
In support of a petition for rehearing the appellant belatedly presents an affidavit of the clerk of the trial court from which it is made to appear that “all papers .relating to the appeal were properly filed on time [in that court]” and that the failure to file the record on appeal in this court within the period prescribed by the rule was due to the “impression” of the clerk that the trial record was in the possession of appellee’s attorney; that following the filing of ap-pellee’s motion to dismiss the appeal the appellant’s attorney contacted the clerk, who then located the record in his office and prepared and transmitted it to this court some few days later.
It is apparently appellant’s contention that such mistake of the clerk not only affords a proper basis for delay beyond the time allowed by the rules in filing here the record on appeal, but also permits the appellant, who bears the responsibility of supervising the progress of the appeal, to ignore the means specifically afforded by Appellate Rule 3.6(j) (2) to relieve against the hardship of a dismissal for failure to strictly comply with the rules in procedural as opposed to substantive areas of the appeal. This position is quite unsound.
The clerk, as an officer of the court, is obliged to comply with the rules of procedure governing his duties. When delinquent or derelict in such performance, appropriate legal measures are available to enforce compliance, as well as to secure redress by way of damages incurred as a result of his failure to perform those duties. It does not follow, however, that the party seeking relief at the appellate level may rely supinely on the theory that the clerk will capably and efficiently perform those duties. On the contrary, the appellant must supervise the orderly progress of the cause and take all steps necessary to insure its proper and expeditious presentation to this court for disposition. As a minimum requirement he must, where circumstances require an extension of the time allowed for the successive steps of an appeal under Florida Appellate Rule 3.6, take timely affirmative action, based on a showing of good cause, to procure an extension of the time allowed under the rule for the performance of the several steps.
Applying what we have said to the situation with which we are now confronted,' there is nothing in the petition for rehearing that would justify the'recall of *211our previous order dismissing the appeal. That dismissal, as well as our observations herein, shall not be construed as in any manner affecting the rights of the appellant as against the clerk of the trial court, who is not a party to this proceeding.
Rehearing denied.
WIGGINTON, C. J., and STURGIS and CARROLL, DONALD K., JJ., concur.
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Schneider v. Gustafson Indus., Inc., 139 So. 2d 423 (Fla. 1962)…ssion shall dismiss * * (Emphasis supplied.) . Sec. 59.27, F.S.A., and implementing rules. Decisions under current F.A.R. 3.6, 31 F.S.A. are not conclusive on the point of strict compliance with its time provisions. See Ward v. Fountain, Fla.App., 122 So. 2d 209, relied upon by the Commission in this ease; Graham v. Thornton, Fla.App.1958, 104 So. 2d 95; Nitsos v. Carlisle, Fla.App.1958, 104 So. 2d 144; Axtell v. Lyons, Fla.App.1958, 105 So. 2d 610. . Fagan v. Robbins (1928), 96 Fla. 91, 117 So. 863; Reid…
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Chandler v. Fla. Farm Bureau Mut. Ins. Co., 546 So. 2d 1179 (Fla. 4th DCA 1989)…the total circumstances surrounding appellant’s contention of good cause for not dismissing, as well as what is contained in his sworn affidavit. We distinguish the two cases which Florida Farm Bureau has urged us to consider. In Ward v. Fountain, 122 So. 2d 209 (Fla. 1st DCA 1960), an appeal was taken from a judgment of the circuit court. The appellee filed a motion to dismiss the appeal because the appellant had failed to file a record on appeal. The appellate court granted the motion. On rehearing the ap…