JAMES A. TREAT, AS MAYOR-COMMISSIONER, H. W. BARNUM, H. B. CARLETON, GEORGE KRAFT AND L. A. DETWILER, AS COMMISSIONERS, AND W. H. SCHULTZ, AS CLERK AND TAX ASSESSOR OF THE CITY OF WINTER PARK,
v.
STATE, EX REL. EDITH B. MITTON, ET VIR.
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The Florida Supreme Court addresses the standard for determining whether a writ of error is frivolous and clarifies that a motion to dismiss as frivolous may be denied even when the court would ultimately affirm the judgment on its merits.
A motion to dismiss a writ of error as frivolous may be denied and the judgment affirmed on its merits even though the writ is not frivolous in the strictest sense. A frivolous appeal is one that is so devoid of merit on the face of the record that there is little prospect it can succeed, not merely one that is likely to be unsuccessful. An appeal is not frivolous where a substantial justiciable question can be identified from it, even if that question is unlikely to be decided in the appellant's favor.
“A frivolous appeal is not merely one that is likely to be unsuccessful. It is one that is so readily recognizable as devoid of merit on the face of the record that there is little, if any, prospect whatsoever that it can ever succeed.”
Establishes the legal standard for what constitutes a frivolous appeal
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Join FLexlaw to unlock all legal intelligenceThe case involves Winter Park city officials (Mayor-Commissioner Treat and Commissioners Barnum, Carleton, Kraft, and Detwiler, with Clerk and Tax Ass…
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Where, on motion to dismiss a writ of error as frivolous, it appears that the case on appeal has been fully briefed on each side, and the contention of the opposing parties thereby made clearly to appear by the written arguments adduced, and where it is obvious that the judgment appealed from must inevitably be affirmed in due course of appellate procedure when the case is reached on the appellate court’s docket in due course, the motion to dismiss the writ of error as frivolous may be denied and the judgment affirmed on its merits, even though the writ of error is not frivolous in a sense to warrant its summary dismissal under the statute. Section 4639 C. G. L. 2920 R. G. S.; Butler Farms, Inc., v. Hinson, 113 Fla. 860, 152 Sou. Rep. 720; Ronald v. State, ex rel. Harris, 113 Fla. 859, 152 Sou. Rep. 721; Dayton v. State Life Ins. Co., 114 Fla. 538, 154 Sou. Rep. 208; Shea v. Carlton, 116 Fla. 507, 156 Sou. Rep. 495.
A frivolous appeal is not merely one that is likely to be unsuccessful. It is one that is so readily recognizable as devoid of merit on the face of the record that there is little, if any, prospect whatsoever that it can ever succeed.* See Hopkinson v. Kennedy, 225 Mass. 231, 114 N. E. Rep. 204. It must be one so clearly untenable, or the insufficiency of which is so manifest on a bare inspection of the record and assignments of error, that its character may be determined without argument or research. An appeal is not frivolous where a substantial justiciable question can be spelled out of it, or from any part of it, even though such question is *511unlikely to be decided other than as the lower court decided it, i. e., against appellant or plaintiff in error.
Where the writ of error is plainly not frivolous within the rule above stated, this Court may deny the motion and retain the case on its docket for final decision in due course, without exercising its right to dispose of it then and there on the merits, as countenanced in the authorities hereinbefore cited, in all cases where disposition of the case on its merits pursuant to the motion to dismiss the appeal as frivolous, would operate simply to give appellant interposing it an advancement of his cause on this Court’s docket to the prejudice of other cases here ahead of it, without at the time serving any special convenience to the appellate court.
Motion to dismiss writ of error as frivolous denied.
Whitfield, C. J., and Terrell, Brown and Buford, J. J., concur.
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Cited By (34 total)
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Whitten v. Progressive Cas. Ins. Co., 410 So. 2d 501 (Fla. 1982)…is justified in cases where the attempt to create a controversy is frivolous. Hernandez v. Leiva, 391 So. 2d at 295. The language of section 57.105 is analogous to this Court’s definition of a frivolous appeal found in Treat v. State ex rel. Mitton, 121 Fla. 509, 510-11, 163 So. 883, 883-84 (1935): A frivolous appeal is not merely one that is likely to be unsuccessful. It is one that is so readily recognizable as devoid of merit on the face of the record that there is little, if any, prospect whatsoever th…
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Carola D. Allen v. Est. of Ellen C. Dutton, 384 So. 2d 171 (Fla. 5th DCA 1980)…ght, sham, irrelevant, superficial.” Webster’s Third New International Dictionary (1976). The definition of “frivolous appeal” is most analogous to the situation at hand and a clear definition is found in Treat v. State ex rel. Mitton, 121 Fla. 509, 163 So. 883 (1935): A frivolous appeal is not merely one that is likely to be unsuccessful. It is one that is so readily recognizable as devoid of merit on the face of the record that there is little, if any, prospect whatsoever that it can ever succeed, (cita…
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T.I.E. Commc'ns, Inc. v. Toyota Motors Ctr., Inc., 391 So. 2d 697 (Fla. 3d DCA 1980)…tial justiciable question can be spelled out of it, or from any part of it, even though such question is unlikely to be decided other than as the lower court decided it, i. e., against appellant or plaintiff in error.” Treat v. State ex rel. Mitton, 121 Fla. 509, 163 So. 883 (1935). Accordingly, we grant Toyota’s motion for attorneys’ fees and order that T.I.E. pay to Toyota an attorney’s fee in the amount of $2,500. The judgment in favor of Toyota is Affirmed. . Even at the time it moved to vacate the…
Previewing 3 of 34 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Scott v. Kirtley, 113 Fla. 637 (Fla. 1933)
- Ronald v. State ex rel. John S. Harris, 113 Fla. 859 (Fla. 1934)
- Shea v. Kittie L. Carlton, 116 Fla. 507 (Fla. 1934)
- Butler Farms, Inc. v. Loraine A. Hinson, 113 Fla. 860 (Fla. 1934)
- Dayton v. The State Life Ins. Co., 114 Fla. 538 (Fla. 1934)