Opinion
No. 3D05-1484.
August 24, 2005.
Appeal from the Circuit Court, Miami-Dade County, Ellen J. Leesfield, Victoria Platzer, and Leon M. Firtel, Judges.
Stuart B. Yanofsky (Sunrise), for petitioner.
Paul E. Susz, Miami, for respondent.
Before GERSTEN, GREEN, and FLETCHER, JJ.
We grant Miami-Dade Medical Centers, Inc.'s petition for writ of certiorari and quash the order of the Circuit Court Appellate Division dismissing its appeal.
The Appellate Division dismissed petitioner's appeal for failure to file its initial brief. As the respondent correctly asserts, the dismissal of petitioner's appeal was preceded by three dismissal motions, all premised on petitioner's failure to file the brief timely. However, none of the Appellate Division's extension orders indicated that no further extensions would be allowed, or contained any equivalent language. "[T]he great weight of Florida authority holds that the failure to file an initial brief by the deadline is not sufficient cause to justify dismissal of the appeal, unless there has been fair warning, in advance, that this consequence may flow from a late filing." United Auto. Ins. Co. v. Total Rehab Med. Ctr., 870 So.2d 866, 869 (Fla. 3d DCA 2004) (en banc); Lindsey v. King, 894 So.2d 1058, 1060 (Fla. 1st DCA 2005). Hence, as in United Auto. Ins. Co., 870 So.2d at 868, petitioner "had no fair warning that dismissal could result from failure to file the appellant's initial brief by the deadline. . . ." We are therefore forced to "conclude that there has been a departure from the essential requirements of law, as the law in this area is well-established." Id. at 869.
Certiorari granted; order quashed.