BOULDER MANAGEMENT, INC., PETITIONER,
v.
THE CHARIS HEALING MINISTRIES & THE REV. PAUL J. SCHWEINLER, RESPONDENTS
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The court held that dismissal of an appeal for failure to file a brief is improper without prior notice and an opportunity to cure the defect.
Boulder Management, Inc. (Boulder) appealed a money judgment against it. The circuit court dismissed Boulder's appeal for failing to file a timely ini…
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PER CURIAM.
Boulder Management, Inc. (Boulder), the defendant landlord in a landlord-tenant dispute, seeks certiorari review from an order of the Broward County circuit court, in its appellate capacity, which dismissed Boulder’s appeal from a county court final money judgment against it and the order denying its motion for rehearing. We grant the petition.
In dismissing the appeal, the circuit court granted the motion filed by the respondent tenants, the plaintiffs/appellees below, which was based on Boulder’s failure to file a timely initial brief. Boulder admits that its first motion for extension of time to file the initial brief was not served until some two weeks after the deadline for serving the initial brief, and it does not indicate whether it presented, at the hearing on its several motions for extension, any good cause for failing to serve that motion within the time frame for serving the initial brief.
However, the filing of briefs is not jurisdictional and the appellate rules allow for extensions of time for most steps in the appellate process, including the filing of briefs. Dismissal is a sanction which the appellate court should not have imposed without first giving Boulder ten days to file its initial brief, along with fair warning in advance that a failure to file the brief by the deadline may subject its appeal to dismissal. See Fla. R.App. P. 9.410 (requiring that an appellate court give ten days notice before imposing sanctions, such as dismissal, for the violation of any of the Florida Rules of Appellate Procedure); Mirage Pools, Inc. v. Dewitt, 757 So. 2d 1280 (Fla. 4th DCA 2000); United Auto. Ins. Co. v. Total Rehab & Med. Ctr., 870 So. 2d 866 (Fla. 3d DCA 2004) (en banc).
As the circuit court departed from the essential requirements of law, we quash the order of dismissal and remand for further proceedings.
Granted.
STEVENSON, C.J., STONE and FARMER, JJ., concur.
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Sveltlana Altman v. State, 41 So. 3d 1030 (Fla. 2d DCA 2010)…f the appellate rules.4 It is well settled that dismissal of an appeal without providing the requisite notice under rule 9.410 constitutes a departure from the essential requirements of the law. See Boulder Mgmt., Inc. v. Charis Healing Ministries, 931 So. 2d 1058, 1059 (Fla. 4th DCA 2006); Lindsey v. King, 894 So. 2d 1058, 1060-61 (Fla. 1st DCA 2005). Here, the circuit court provided notice of the potential for dismissal for failing to timely file the initial brief in the order to show cause. But instead of…
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Tucker v. Charles D. Franken, P.A., 62 So. 3d 1207 (Fla. 4th DCA 2011)…der dismissing the appeal. Petitioner, however, was not given notice by the court at any point in time that her appeal was in jeopardy of being dismissed for lack of filing an initial brief. In Boulder Management, Inc. v. Charts Healing Ministries, 931 So. 2d 1058, 1059 (Fla. 4th DCA 2006), we granted certiorari when the circuit court, sitting in its appellate capacity, dismissed an appeal based upon Boulder’s failure to timely file an initial brief. Although Boulder moved for an extension of time to file the…
Authorities Cited
- Pascual v. State, 870 So. 2d 866 (Fla. 3d DCA 2004)
- Mirage Pools, Inc. v. Dewitt, 757 So. 2d 1280 (Fla. 4th DCA 2000)