Magier v. Solomon & Benedict, P.A., 97-03646
| Decision Date | 19 December 1997 |
| Docket Number | No. 97-03646,97-03646 |
| Citation | 704 So.2d 685 |
| Parties | 23 Fla. L. Weekly D40 David MAGIER and Nikos Kefalides, Petitioners, v. SOLOMON & BENEDICT, P.A., Respondent. |
| Court | Florida District Court of Appeals |
John D. Goldsmith of Trenam, Kemker, Scharf, Barkin, Frye, O'Neill & Mullis, P.A., Tampa, for Petitioners.
Melody E. Altman of Solomon & Benedict, P.A., Tampa, for Respondent.
David Magier and Nikos Kefalides petition this court for a writ of certiorari to quash the circuit court's order dismissing their appeal from county court. We grant the petition because the dismissal was an unwarranted sanction that deprived the petitioners of their access to courts. See Hastings v. State, 640 So.2d 115 (Fla. 2d DCA 1994); Kennedy v. Guarantee Mgmt. Servs., Inc., 667 So.2d 1013 (Fla. 3d DCA 1996).
On December 13, 1996, the county court rendered a default judgment against the petitioners, Mr. Magier and Mr. Kefalides, and in favor of Solomon & Benedict, P.A. The petitioners filed motions for rehearing and to set aside the default judgment on December 31, 1996. Because these motions would not stay rendition, the petitioners appealed the judgment to circuit court on January 13, 1997. On February 27, 1997, they filed a motion in circuit court to relinquish jurisdiction to the county court to resolve the postjudgment motions. The circuit court denied the motion to relinquish jurisdiction on March 31, 1997.
The record on appeal was prepared by the clerk no earlier than April 24, 1997. On April 30, 1997, Solomon & Benedict moved to dismiss the appeal on the theory that the petitioners' initial brief had been due on March 24, 1997. This date is seventy days from the filing of the notice of appeal. The motion did not take into consideration the fact that the earlier motion to relinquish jurisdiction tolled the time for briefing. It did not disclose the late preparation of the record by the clerk. In addition, counsel did not follow the recommendation in Florida Rule of Appellate Procedure 9.300(a) to contact opposing counsel prior to filing the motion.
In response to the motion to dismiss, the petitioners filed a motion for extension of time on May 6, 1997, requesting an extension to May 31, 1997, to file the initial brief. Although the respondents criticize the petitioners for failure to contact them to request this extension pursuant to rule 9.300(a), they fail to recognize that the motion was a timely authorized response to their own motion to dismiss.
The petitioners served their initial brief on May 30, 1997. On July 30, 1997, Judge Daniel Gallagher entered an order dismissing the appeal, finding that...
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