Caldwell v. Estate of McDowell, 69968

Decision Date14 May 1987
Docket NumberNo. 69968,69968
Parties12 Fla. L. Weekly 239 Sara CALDWELL, Petitioner, v. ESTATE OF Jerry L. McDOWELL, Respondent.
CourtFlorida Supreme Court

Sara Caldwell, Daytona Beach, in pro. per.

Rob Seegmiller, Sr. Staff Atty., Daytona Beach, for respondent, the District Court of Appeal, Fifth Dist.

PER CURIAM.

Sara Caldwell petitions for a writ of mandamus to compel the Fifth District Court of Appeal to reinstate her appeal. We have jurisdiction. Art. V, § 3(b)(8), Fla. Const. We grant the writ.

Sara Caldwell was appointed attorney for the minor children of Jerry L. McDowell: Sharina McDowell, Sean McDowell, and Shannon McDowell. She filed a petition for the appointment of a guardian ad litem in the circuit court, which was subsequently denied. She then appealed the denial to the Fifth District Court of Appeal. Caldwell did not pay the $100 statutory filing fee to the appellate court as required by Florida Rule of Appellate Procedure 9.110(b) and section 35.22(3), Florida Statutes (1985).

The Fifth District entered an order on November 21, 1986, stating that the appeal would be dismissed unless the filing fee was paid within twenty days. On December 11, 1986, Caldwell filed with the district court a circuit court order determining that the children were insolvent minors for purposes of appeal. The order made no mention of Caldwell's insolvency, but it was styled "Sara Caldwell, Appellant For: Sharina McDowell, Sean McDowell and Shannon McDowell." On December 31, 1986, the clerk of the district court dismissed the appeal for failure to pay the statutory filing fee. Caldwell then petitioned this Court for a writ of mandamus to compel the Fifth District to reinstate her appeal on behalf of the minor children.

It is well settled that mandamus will lie where the petitioner has a clear legal right to the performance of the particular duty sought and that he has no other legal method for obtaining relief. Holland v. Wainwright, 499 So.2d 21 (Fla. 1st DCA 1986). There is authority that mandamus is the appropriate remedy in this case. State ex rel. Gaines Construction Co. v. Pearson, 154 So.2d 833 (Fla.1963); State ex rel. Hopps v. Horne, 75 Fla. 149, 77 So. 672 (1918).

Admittedly, Caldwell was listed as the appellant, and the order of insolvency did not declare her to be insolvent. Nevertheless, it was apparent from the order of insolvency that Caldwell was proceeding on behalf of the minor children. Consequently, we hold that...

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7 cases
  • Schmidt v. Crusoe
    • United States
    • Florida Supreme Court
    • May 1, 2003
    ...was a petition for writ of mandamus and the petitioner's case had already been dismissed in the district court. In Caldwell v. Estate of McDowell, 507 So.2d 607 (Fla.1987), for example, this Court held that the petitioner had a clear legal right to be deemed insolvent and thus the district ......
  • Point Conversions, LLC v. Pfeffer & Marin Holdings, LLC
    • United States
    • Florida District Court of Appeals
    • April 29, 2020
    ...for obtaining relief." See Pino v. Dist. Court of Appeal, Third Dist., 604 So. 2d 1232, 1233 (Fla. 1992) (citing Caldwell v. Estate of McDowell, 507 So. 2d 607 (Fla. 1987) ). Here, Point Conversions indisputably has an adequate remedy to challenge the trial court's ultimate determination—if......
  • Florida League of Cities v. Smith, 80489
    • United States
    • Florida Supreme Court
    • October 29, 1992
    ...E.g., Pino v. District Court of Appeal, 604 So.2d 1232 (Fla.1992); Hatten v. State, 561 So.2d 562 (Fla.1990); Caldwell v. Estate of McDowell, 507 So.2d 607 (Fla.1987). Mandamus may not be used to establish the existence of such a right, but only to enforce a right already clearly and certai......
  • Kobayashi v. Kobayashi
    • United States
    • Florida Supreme Court
    • December 7, 2000
    ...(compelling reinstatement of an appeal dismissed for failure to obtain an order of indigency from the trial court); Caldwell v. Estate of McDowell, 507 So.2d 607 (Fla.1987) (requiring reinstatement of an appeal dismissed for failure to provide an order of insolvency); Jellen v. District Cou......
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