SAUL GOODMAN, PETITIONER,
v.
RICHARD H. OLSEN, 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.
The Florida Supreme Court reviewed a District Court of Appeal's dismissal of an appeal for the appellant's failure to timely file a brief. The Court held that the appellee's motion to dismiss was untimely because it was filed nearly a month after the appellee had already filed his own brief without initially objecting, and thus the dismissal was an abuse of discretion.
The Court held that the appellee's motion to dismiss was untimely and that the District Court abused its discretion in granting it. Because the appellee waited nearly a month after filing his own brief before moving to dismiss, the objection was untimely and the appeal must be reinstated.
[1] An objection to an appellant's failure to comply with appellate rules is untimely if the appellee files a brief on the merits without first moving to dismiss the appeal.
[2] A district court abuses its discretion by dismissing an appeal when the appellee's motion to dismiss is untimely.
Previewing 2 of 3 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“No motion was presented to this court to require the appellant to file a brief in conformity with the rules or suffer a dismissal of its appeal. The appellee chose to wait until the filing of his brief and therein argued that the appeal should be affirmed because of the violation of the rule. Such an objection is untimely.”
This quote from Hector Supply establishes the principle that an objection to procedural non-compliance is untimely if raised only after the objecting party files his own brief.
Previewing 1 of 2 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceGoodman filed a notice of appeal on June 23, 1972, from an adverse judgment in Dade County Circuit Court. On September 23, 1972, the appellee filed hi…
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 Appellate Rules Compliance cases and more on FLexlaw
This cause is before us on petition for writ of certiorari to review an order of the District Court of Appeal, Third District, reported at 269 So.2d 762, which conflicts with Hector Supply Co. v. Carter, 122 So. 2d 22 (Fla.App. 3rd, 1960). We have jurisdiction pursuant to Fla.Const., Article V, Section 3(b) (3), F.S.A. (1973).1
On June 23, 1972, the appellant (petitioner here and plaintiff in the trial court) filed his notice of appeal in the District Court of Appeal, Third District, from an adverse judgment of the Circuit Court of Dade County. Difficulties in the prosecution of the appeal arose when, on September 23, 1972, appellee filed his brief on the merits with the District Court prior to the submission of appellant’s brief. At the time of filing his brief, however, appellee made no motion to dismiss the appeal for failure of appellant to submit a brief.
On October 19, 1972, appellee moved to dismiss because of appellant’s failure to comply with Rule 3.7, subd. a, F.A.R., 32 F.S.A. Thereupon, on November 2, 1972, appellant filed a motion for leave to file his brief and explain his delay with supporting affidavits. Both motions were heard by the Court on November 13, 1972, at which time appellant filed his brief at the Court’s suggestion.
On November 17, 1972, the District Court entered its order denying appellant’s motion for leave to file his brief and granted, appellee’s motion to dismiss. Cer-tiorari to this Court followed.
In the case cited for conflict, Hector Supply Co. v. Carter, supra, appellant filed a brief which failed to conform to the requirements of Rule 3.7, subd. f(4), F.A.R. Subsequently, appellee filed his brief and in it also argued that the appeal should be dismissed because of appellant’s failure to conform to the appellate rules. The District Court concluded that the motion to dismiss was untimely, observing:
". . . No motion was presented to this court to require the appellant to file a brief in conformity with the rules or suffer a dismissal of its appeal. The ap-pellee chose to wait until the filing of his brief and therein argued that the appeal should be affirmed because of the violation of the rule. Such an objection is untimely.”
A similar situation exists in the instant case. Sub judice, appellee filed his brief on September 23, 1972 but made no motion to dismiss until nearly a month later. In these circumstances, it is our judgment that the objection was untimely and that the District Court abused its discretion in dismissing the appeal.
Accordingly, certiorari is granted, the order of the District Court of Appeal, Third District, is quashed and the cause remanded to that Court with directions that the appeal be reinstated.
It is so ordered.
ERVIN, Acting C. J, and ADKINS and DEKLE, JJ., concur.
BOYD, J., dissents.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Goodman v. Olsen, 365 So. 2d 393 (Fla. 3d DCA 1978)…cedural reasons. Goodman v. Olsen, 269 So. 2d 782 (Fla. 3d DCA 1972). He sought review of the dismissal in the Supreme Court of Florida. Certiorari was granted and the appeal was reinstated in an opinion authored by Justice McCain. Goodman v. Olsen, 278 So. 2d 612 (Fla.1973). On remand, this court affirmed the trial court judgment in favor of Olsen. Goodman v. Olsen, 291 So. 2d 71 (Fla. 3d DCA 1974). Goodman again sought certiorari in the Supreme Court of Florida. Review was granted, and the opinion so crucia…
-
Crecelius v. Rizzitano, 2026 WL 555031 (Fla. 6th DCA 2026)…[m]ay review by certiorari any decision of a district court of appeal . . . that is in direct conflict with a decision of any district court of appeal or of the supreme court on the same question of law . . . ." (emphasis added)); Goodman v. Olsen, 278 So. 2d 612, 613 n.1 (Fla. 1973). [*52] should not have permitted the plaintiffs to introduce the undisclosed witness's testimony where the defendant would suffer prejudice from the undisclosed witness's testimony." Maj. op. at 12. And third, and finally, rega…
-
Goodman v. Olsen, 280 So. 2d 447 (Fla. 3d DCA 1973)…November 17, 1972 (269 So. 2d 782) granting appellee’s motion to dismiss appeal in the above styled cause; and Whereas, on review of this court’s judgment, by certiorari, the Supreme Court of Florida, by its opinion and judgment filed May 9, 1973 (278 So. 2d 612) and mandate now lodged in this court, quashed this court’s judgment with directions that this appeal be reinstated; NOW, THEREFORE, It is Ordered that the final order of this court heretofore issued in this court on December 6, 1972 is withdrawn,…
Authorities Cited
- Hector Supply Co. v. Carter, 122 So. 2d 22 (Fla. 3d DCA 1960)