04-1198 PAUL REVERE V. KAHN

State: Florida

Court: Florida Third District Court

Docket No: 04-1198 PAUL REVERE V. KAHN

Case Date: 05/26/2004

Preview:NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF.

IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JANUARY TERM, A.D. 2004

** THE PAUL REVERE LIFE INSURANCE COMPANY, Petitioner, vs. SHELLEY KAHN, Respondent. ** ** ** ** ** CASE NO. 3D04-1198 04-114AP

LOWER TRIBUNAL NO.

Opinion filed May 26, 2004. A Writ of Certiorari to the Circuit Court for Miami-Dade County, Appellate Division. Shutts & Bowen, LLP., and John E. Meagher, for petitioner. McLuskey & McDonald, P.A., and John W. McLuskey; and Lauri Waldman Ross, for respondent. Before SHEVIN, RAMIREZ, and WELLS, JJ. RAMIREZ, J.

The

Paul

Revere

Life

Insurance

Company

seeks

certiorari

review of a decision of the Eleventh Circuit Court's Appellate Division, granting its motion for extension of time only until June 2, 2004, the day when the preparation of the trial

transcript will be completed.

We find that the circuit court

departed from the essential requirements of the law; thus we grant the petition, quash the circuit court order with

instructions to grant an extension to June 20, 2004. This Petition is unopposed. It is fundamentally unfair to require a party to prepare a brief without a transcript. Cf.

Trans-Continental Fin. Corp. v. Baxter, 402 So. 2d 1289, 1290 (Fla. 5th DCA 1981). Perhaps the circuit court's order is its

response to our decision in United Auto. Ins. Co., v. Total Rehab & Med. Ctr., 29 FLA. L. WEEKLY D331 (Fla. 3d DCA Feb. 4, 2004) (en banc), wherein we held that it was improper to dismiss an appeal without first providing fair warning that the failure to file an initial brief could result in such a sanction. We would like to

point out that we based our decision on Florida's long-standing policy in favor of deciding controversies on the merits. The miserly granting of the unopposed motion for extension of time only until the same day when a transcript is completed in effect forces an appellant to prepare a brief without the benefit of a transcript. 2 This has resulted in additional expense to the

litigants in having to perfect this appeal, the additional cost of paying a filing fee, the additional attorney's time of having to research and draft a petition of for certiorari, such a and the

additional petition.

judicial

labor

granting

meritorious

We again recognize the appellate division's discretion in the control and management of its own docket, but repeat that this cannot be achieved at the expense of litigants' rights to due process and the essential requirements of law. Petition granted with directions.

3

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