2D03-3199 / Perez & Perez, M.D., P.A. v. Holder

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State: Florida

Court: Florida Southern District Court

Docket No: 2D03-3199

Case Date: 03/10/2004

Plaintiff: 2D03-3199 / Perez & Perez, M.D., P.A.

Defendant: Holder

Preview:NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
PEREZ & PEREZ, M.D., P.A.,                                                                   )
)
Petitioner,                                                                                  )
)
v.                                                                                           )   Case No. 2D03-3199
)
KENNETH E. HOLDER,                                                                           )
)
Respondent.                                                                                  )
________________________________ )
Opinion filed March 10, 2004.
Petition for Writ of Certiorari
to the Circuit Court for the Thirteenth
Judicial Circuit for Hillsborough County;
sitting in its appellate capacity.
Thomas John Dandar of
Dandar & Dandar, P.A., Tampa,
for Petitioner.
J. Meredith Wester and
Angela C. Cabassa of Mechanik
Nuccio Williams Hearne & Wester, P.A.,
Lutz, for Respondent.
CANADY, Judge.
Perez & Perez, M.D., P.A., petitions for review of an order of the circuit
court dismissing an appeal of a county court order for failure to timely submit an initial
brief.   Because we conclude that the circuit court denied the petitioner procedural due
process and departed from the essential requirements of law, we grant the petition.

Before the petitioner's initial brief was due and while the petitioner was
attempting to obtain approval of a statement of evidence pursuant to Florida Rule of
Appellate Procedure 9.200(b)(4), the circuit court granted a sixty-day extension of the
deadline for the filing of the initial brief.   During the time that the petitioner was
proceeding pursuant to rule 9.200(b)(4), the extension for filing the initial brief expired,
and the petitioner's counsel failed to file a motion for a further extension.   Five days
following the expiration of the deadline, the circuit court entered a sua sponte order
dismissing the appeal.
The petitioner moved to vacate the dismissal, explaining that there had
been a delay in the record supplementation and stating that the brief was "99%
complete," lacking only record citations from the record as supplemented by the
statement of evidence.   The circuit court responded to this motion approximately one
month later with an order that, based upon the date on the face of the order, provided
six days to file the initial brief and listed a deadline for filing the brief that was a legal
holiday.   The brief was ultimately filed by the petitioner's counsel four days after the
deadline.
Approximately one week after the initial brief was filed, the respondent,
Kenneth E. Holder, moved to dismiss the appeal because of the tardiness of the initial
brief.   The petitioner filed a response to this motion in which it claimed that, due to the
holiday and the weekend which had immediately preceded the holiday, its counsel did
not receive the order until after the deadline.   More than two weeks after the brief was
filed, the circuit court entered an order dismissing the appeal as a sanction for failing to
timely file the brief.
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In considering the petition for certiorari review, we acknowledge the limited
circumstances under which it is appropriate for a district court to review an appellate
decision of a circuit court.   " 'It is well-established that certiorari should not be used as a
vehicle for a second appeal in a typical case tried in county court.' "   Ivey v. Allstate Ins.
Co., 774 So. 2d 679, 682 (Fla. 2000) (quoting Stilson v. Allstate Ins. Co., 692 So. 2d
979, 982 (Fla. 2d DCA 1997)).   Certiorari "is limited to those instances where the lower
court [i.e., the circuit court] did not afford procedural due process or departed from the
essential requirements of law."   Allstate Ins. Co. v. Kaklamanos, 843 So. 2d 885, 889
(Fla. 2003) (citing Haines City Cmty. Dev. v. Heggs, 658 So. 2d 523, 525 (Fla. 1995)).
There is a departure from the essential requirements of law justifying certiorari review
"only when there has been a violation of a clearly established principle of law resulting
in a miscarriage of justice."   Id.
When reviewing a circuit court's dismissal of an appeal for failure to file a
timely brief, this court has noted that it has declined to dismiss an appeal even when it
dealt with an attorney
who filed a notice of appeal, was granted an extension of
time to file a brief, failed to file the brief timely, failed to
comply with this court's order to show cause, and still was
not prepared to file the initial brief in the case when ordered
to appear before the court to explain his failures to comply
with previous court orders.
Hastings v. State, 640 So. 2d 115, 116 (Fla. 2d DCA 1994) (citing Moose v. State, 519
So. 2d 61, 62 (Fla. 2d DCA 1988)).   We also reiterated in Hastings that "we generally
seek to avoid the harsh result of dismissal[,] which can result in the sins of the attorney
being visited upon the client."   Hastings, 640 So. 2d at 116 (quoting Moose, 519 So. 2d
at 62).   Although Hastings was a criminal case, its holding has been applied in the civil
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context.   See Magier v. Solomon & Benedict, P.A., 704 So. 2d 685 (Fla. 2d DCA 1997);
see also Summers v. Blanton, 853 So. 2d 1108 (Fla. 1st DCA 2003) (detailing extensive
abuses-including numerous appellate rules violations-that did not lead to dismissal).
Hastings clearly establishes as a principle of law that dismissals for the
tardy filing of a brief are highly disfavored.   Applying the principle articulated in Hastings
to the petitioner's counsel's relatively minor negligence, which consisted largely of
neglecting to file a motion for an extension of time to file the initial brief while the record
was being supplemented, we conclude that the circuit court's dismissal of the appeal-a
drastic sanction imposed on petitioner for counsel's failure-constituted "a violation of a
clearly established principle of law resulting in a miscarriage of justice."   Kaklamanos,
843 So. 2d at 889.
We also conclude that the notice provided by the order that both vacated
the dismissal and set the final deadline for the filing of the initial brief violated the
requirements of due process.   Due process requires that a court imposing a deadline on
a litigant for the performance of a particular act give the litigant reasonable notice of the
deadline before the deadline arrives.   See United Auto. Ins. Co. v. Total Rehab &
Medical Ctr., 29 Fla. L. Weekly D331, D332 (Fla. 3d DCA Feb. 4, 2004)
("[C]onsiderations of fairness dictate that if a failure to file the brief by the deadline may
subject the appeal to dismissal, there must [be] fair warning of that fact in advance.").
We therefore grant the petition for writ of certiorari.   We quash the trial
court's order and direct that the appeal be reinstated.1
ALTENBERND, C.J., and COVINGTON, J., Concur.
1    We note that our disposition of this case does not preclude the imposition by
the circuit court of an appropriate lesser sanction.
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