PAREPA AKIN, AS EXECUTRIX OF THE ESTATE OF W. W. AKIN, DECEASED, ET AL., APPELLANT,
v.
EDGAR HARVEY, APPELLEE
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The Florida District Court of Appeal dismissed an appeal for failure to prosecute, finding that the appellant unreasonably delayed prosecution of the appeal by nearly five months without taking required procedural steps or requesting extensions.
The court granted the motion to dismiss because appellants' inordinate and inexcusable delay in prosecuting the appeal, combined with their failure to request timely extensions and their inadequate justification for the delay, violated the appellate rules and required dismissal.
[1] Failure to prosecute an appeal in accordance with appellate rules, including timely filing of assignments of error, directions to the clerk and reporter, and briefs, warr…
[2] An attorney's belief that extensions of time are freely granted does not excuse the failure to comply with appellate procedural rules.
Previewing 2 of 5 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“Oftentimes and rightfully so, the judicial system is criticized for inordinate delay in reaching a final judgment disposing of controversies among litigants. It is the responsibility of attorneys to promptly dispatch the duties they owe their clients.”
Establishes the foundational duty of attorneys to prosecute appeals timely and the court's concern with delay in the judicial system
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Join FLexlaw to unlock all legal intelligenceAppellant filed a notice of appeal on May 24, 1973, from a final judgment rendered April 26, 1973. Between May 24 and October 2, 1973, appellants fail…
The full statement of facts, procedural history, and disposition for this case are member content.
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Motion to Dismiss
RAWLS, Chief Judge.
Appellee seeks dismissal of this cause on the grounds that appellants have failed to prosecute this appeal in accordance with Florida Appellate Rules 3.5, 3.6, and 3.7, 32 F.S.A. Appellants filed a notice of appeal on May 24, 1973, from a final judgment rendered on the 26th day of April, 1973. As of the date of this motion and as of October 2, 1973, the date this Court heard oral arguments on the subject motion to dismiss, appellants had not filed or tendered assignments of error, directions to the clerk and reporter, or appellants’ brief. In short, this record reflects that since May 24, 1973, until October 2, 1973, appellants completely failed to take any steps toward prosecuting the subject appeal.
By an instrument' entitled “Motion of Appellants to Deny Appellee’s Motion to Dismiss and Motion to Extend Time”, filed in this Court on October 1, 1973, appellant states: “It has been the experience of the undersigned that a spirit of ‘live and let live’ prevails among attorneys involved in appeals, and that extensions of time are freely granted by attorneys involved in appeals.” First, it is noted that until the aforesaid instruments was filed in this Court, appellants had not requested an extension of time from the trial court or from this Court for the performance' of any act required on their parts by the Florida Appellate Rules. Secondly, we observe that attorneys do not grant extensions of time involved in appeals — such prerogative is vested in the trial courts and the appellate courts. Thirdly, the sole reason that appellant has offered for his flagrant violation of the subject appellate rules is that: “It has been the experience of the undersigned that extensions of time in appellate matters are especially prevalent during the summer months.” Without further comment, it is noted that the foregoing observation does not constitute good cause for failure of an attorney to timely progress an appeal.
Oftentimes and rightfully so, the judicial system is criticized for inordinate delay in reaching a final judgment disposing of controversies among litigants. It is the responsibility of attorneys to promptly dispatch the duties they owe their clients. Proper functioning of the adversary system depends to a great extent upon lawyers abiding by the procedural rules and timetables prescribed in order for a prompt final decision to be reached. The inordinate, inexcusable delay by appellant in failing to take any action to prosecute the subject appeal within the time periods prescribed by the Florida Appellate Rules requires that the subject motion to dismiss be granted.-
This cause stands dismissed.
SPECTOR and WIGGINTON, JJ., concur.
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Winstead v. Adams, 363 So. 2d 807 (Fla. 1st DCA 1978)…oning difficulties they had had communicating with their clients. The response, however, included no explanation of why they made no motion for extension of time stating good cause therefor before the time had expired. This Court in Akin v. Harvey, 283 So. 2d 872 (Fla. 1 DCA 1973), said: “Oftentimes and rightfully so, the judicial system is criticized for inordinate delay in reaching a final judgment disposing of controversies among litigants. It is the responsibility of attorneys to promptly dispatch the d…
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Swicegood v. Fla. Dep't of Transp., 394 So. 2d 1111 (Fla. 1st DCA 1981)…there has been a flagrant disregard of the rules and appellant has been afforded an opportunity to explain the reasons for noncompliance but does not do so, dismissal is justified. Winstead v. Adams, 363 So. 2d 807 (Fla. 1 DCA 1978); Akin v. Harvey, 283 So. 2d 872 (Fla. 1 DCA 1973). Therefore, this appeal is dismissed. MILLS, C. J., and BOOTH and LARRY G. SMITH, JJ., concur.…
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Behring Corp. v. Walker, 42 Fla. Supp. 110 (Broward Cty. Cir. Ct. 1975)…he appellant’s main brief has, therefore, expired and appellant is considered to have abandoned this apeal. The Carter Corporation v. The Albanese Company, Inc., 177 So. 2d 513 (1st D.C.A. Fla. 1965). It is appropriate to quote from Akin v. Harvey, 283 So. 2d 872 (1st D.C.A. Fla. 1973), where the District Court, faced with similar facts, said — "Often times and rightfully so, the judicial system is criticized for inordinate delay in reaching a final judgment disposing of controversies among litigants. It is…