Opinion
No. 83-515.
May 4, 1983. On Rehearing June 16, 1983.
Petition from the Circuit Court, Seventeenth Judicial Circuit, Broward County, James M. Reasbeck, J.
Karl W. Adler of Adler, Tolar Adler, Fort Lauderdale, for petitioner.
E. Ross Zimmerman of Weinstein Zimmerman, P.A., Fort Lauderdale, for respondents.
By petition for writ of certiorari petitioner seeks an order of this court quashing a decision of the circuit court, entered in its appellate capacity, which granted respondents' motion to quash petitioner's appeal because petitioner failed to timely file an appellant's brief.
We have reviewed the petition and respondents' reply, together with the appendix presented, and hold that the order of the circuit court "quashing" the appeal is a departure from the essential requirements of law because the appellant's brief was not due and thus quashal of the appeal was not in order. Before the time had expired for filing its brief, appellant filed in the circuit court a motion for an extension of time. That tolled all time periods until the motion was ruled upon. Florida Rule of Appellate Procedure 9.300(b). That motion has never been ruled upon. Although respondents' impatience is understandable, the remedy was for them to have the circuit court rule on the pending motion. No doubt in the circuit court motions are not routinely sent to the judges by the clerk's office but are called up for hearing by the parties. Of course, either party may progress the case by calling up motions for disposition.
Accordingly, the petition for writ of certiorari is granted and the order "quashing" the petitioner's appeal in the circuit court is quashed and the cause is remanded with directions to reinstate the appeal and direct appellant therein to file its brief within a specified time.
ANSTEAD and GLICKSTEIN, JJ., concur.
BY ORDER OF THE COURT:
ORDERED that Petitioner (Appellant's) May 16, 1983 Motion for Clarification of May 4, 1983 Opinion and Motion to Quash Circuit Court Order of May 9, 1983 are granted. The Circuit Court of Broward County is directed to enter an order granting the Petitioner (Appellant) fifteen (15) days to file appellant's brief in the Circuit Court.