HANK ANDERSON, PETITIONER,
v.
LYNWOOD G. WILLIS, D/B/A BAYTREE APARTMENTS, RESPONDENT
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In this procedural case, a Florida appellate court reversed a circuit court's dismissal of an appeal for failure to timely file the initial brief. The appellate court held that the service of an earlier motion to dismiss tolled the deadline for filing the brief under Florida Rule of Appellate Procedure 9.300(b), leaving the appellant still within the permitted time period when the appeal was dismissed.
The service of the April 10 motion to dismiss tolled the time schedule for filing the initial brief. When the appeal was dismissed on June 29, 1981, appellant still had 48 days remaining in which to serve the brief. The circuit court's dismissal order violated the essential requirements of law.
[1] Service of a motion to dismiss an appeal tolls the time for filing subsequent appellate briefs, regardless of the motion's merit.
[2] An appellate court's review of a lower appellate court's order is limited to determining if the order violates the essential requirements of law.
Previewing 2 of 4 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“Although appellant's brief was originally due on May 28, the service of the motion to dismiss tolled the time schedule. Fla.R. App.P. 9.300(b).”
Establishes the core holding that a motion to dismiss tolls the deadline for filing the appellant's brief
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Join FLexlaw to unlock all legal intelligencePetitioner filed a notice of appeal on March 19, 1981, with an initial brief due 70 days later on May 28, 1981. On April 10, 1981, respondent moved to…
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PER CURIAM.
Petitioner seeks review of an order of the circuit court, sitting in its appellate capacity, dismissing petitioner’s appeal for failure to timely file the initial brief.
The notice of appeal was filed on March 19,1981. Appellant’s brief was due seventy days later on May 28, 1981. However, on April 10, 1981, respondent/appellee moved to dismiss the appeal for appellant’s failure “to designate portions of the transcript for inclusion in the record or alternatively, to prepare a statement of the evidence of the proceedings.” Appellant/petitioner responded to the motion on April 16. On June 2, respondent served an amended motion to dismiss realleging the grounds of the first motion and adding that appellant had failed to timely file his brief. Petitioner responded on June 10, stating that the record was timely prepared and that the motion to dismiss served April 10 tolled the time for service of the initial brief. On June 29, 1981, the circuit court dismissed the appeal due to appellant’s failure to file his initial brief within the time period required by Florida Rule of Appellate Procedure 9.110(f).
Although appellant’s brief was originally due on May 28, the service of the motion to dismiss tolled the time schedule. Fla.R. App.P. 9.300(b). When respondent/appellee served its motion on April 10, petitioner/appellant had forty-eight days remaining in which to serve its brief. When the appeal was dismissed on June 29, 1981, appellant still had forty-eight days remaining in which to serve his brief.
We recognize that the April 10th motion to dismiss was of questionable merit; however, Rule 9.300(b) does not distinguish between meritorious motions and frivolous motions. Unless the motion is listed in subsection (d), service of the motion tolls the time for subsequent acts.
Respondent argues that we should deny certiorari because the record on appeal “... is devoid of any matter upon which the Circuit Court could reverse or modify the March 16 default Final Judgment....” and that “... affirmance of the default Final Judgment is inescapable if this matter proceeded on appeal.” Petitioner’s appeal may very well be without merit; however, that is for the circuit court, sitting in its appellate capacity, to determine. The function of this Court is to determine whether the order of the circuit court violates the essential requirements of law. We find that it does.
The Petition for Writ of Certiorari is granted, the circuit court’s order of June 29, 1981, is quashed, and the appeal is reinstated.
ROBERT P. SMITH, Jr., C. J., and ERVIN and LARRY G. SMITH, JJ., concur.
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Downey v. Zier & Hacker, P.A., 556 So. 2d 509 (Fla. 4th DCA 1990)…e time schedule of any appellate court proceeding until the court disposes of the motion. Fla.R.App.P. 9.300(d). Subsequent motions of both parties served further to toll the time schedule for filing the initial brief. See, e.g., Anderson v. Willis, 402 So. 2d 1344 (Fla. 1st DCA 1981). Accordingly, petitioners did not fail timely to file their initial brief; the time to file it had not run. CERTIORARI GRANTED; ORDER OF DISMISSAL QUASHED; CAUSE REMANDED. ANSTEAD and GLICKSTEIN, JJ., concur.…