ROBERT DOWNEY AND MARGUERITA DOWNEY, PETITIONERS,
v.
ZIER & HACKER, P.A., RESPONDENT
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The court granted certiorari and quashed the circuit court's dismissal of petitioners' appeal for failure to timely file an initial brief, holding that timely-served motions toll the appellate time schedule and the brief deadline had not yet run.
Timely-served motions toll the appellate time schedule, and petitioners did not fail to timely file their initial brief because the time to file had not yet run.
[1] Timely-served motions toll the appellate time schedule for filing an initial brief under Florida Appellate Procedure Rule 9.300(d), and subsequent motions by parties furt…
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Join FLexlaw to unlock all legal intelligencePetitioners filed an appeal on April 12, 1989, and filed a motion to supplement the record on June 15, 1989, served by June 20, 1989, within the seven…
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LETTS, Judge.
We grant the writ and quash the order of the Broward County Circuit Court dismissing petitioners’ appeal from the county court for failure timely to file their initial brief. We remand for further proceedings.
The appeal was filed April 12, 1989. See Rosayn v. Berry, 413 So. 2d 460, 461 (Fla. 4th DCA 1982) (document is filed on date a clerk of the court first time stamps the document, regardless of any word appearing over the time stamp). Appellants’ motion to supplement the record, filed June 15, 1989, and served no later than June 20, 1989, was served within the seventy day period allowed from filing of the notice of appeal to filing of the initial brief. Fla.R. App.P. 9.110(f). Any motion timely served which is not excepted by rule 9.300(d), tolls the 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.
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Citator
Cited By
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United Auto. Ins. Co. v. Active Spine Ctrs., LLC, 899 So. 2d 1235 (Fla. 3d DCA 2005)…by United Auto below is not included in subdivision (d). Therefore, United Auto’s motion to supplement the record tolled the due date for the filing of its initial brief. The law on this point is well-established. See Downey v. Zier & Hacker, P.A., 556 So. 2d 509 (Fla. 4th DCA 1990) (granting writ when motion to supplement record was timely served prior to the due date of the initial brief). Accordingly, we are compelled to conclude in this case, as we did in our earlier United Auto decision, that the there…
Authorities Cited
- Hank Anderson v. Lynwood G. Willis, 402 So. 2d 1344 (Fla. 1st DCA 1981)
- Rosayn v. Berry, 413 So. 2d 460 (Fla. 4th DCA 1982)