Opinion
No. 91-1625.
October 8, 1991.
Appeal from the Circuit Court for Dade County, Appellate Division, Leonard Rivkind, J.
Baldwin Friedman, and Kenneth A. Friedman, North Miami Beach, for petitioner.
Juan M. Carrera, Miami, for respondent.
Before FERGUSON, LEVY and GERSTEN, JJ.
Petitioner Trojan Investments, Ltd. [hereafter "Trojan"], sued the respondent Pelege Iron Corporation [hereafter "Pelege"] in the County Court for breach of contract. A jury verdict was rendered in favor of Pelege. The County Court entered a final judgment for Pelege and awarded Pelege $3000.00 for attorney's fees based upon a pretrial offer of judgment which had been refused by Trojan.
Trojan appealed to the Circuit Court, Appellate Division. However, upon Trojan's failure to timely file its initial brief, the Circuit Court granted Pelege's Motion to Dismiss the appeal for lack of prosecution, and dismissed the appeal.
Thereafter, Trojan filed a motion to vacate the order of dismissal and to reinstate the appeal. Trojan also filed its initial brief, which was 36 days late. The Circuit Court denied Trojan's motion. Trojan then petitioned for writ of certiorari to this Court, asking that we quash the orders of the Circuit Court, Appellate Division.
On July 23, 1991, this Court issued an Order directing Pelege to file a response to the petition for certiorari within 20 days. However, Pelege chose not to avail itself of the opportunity to advise this court as to why the petition should be denied and, furthermore, failed to file any response whatsoever. In the absence of any facts or case law suggesting to the contrary, a review of the record and petition, as presented by the petitioner, Trojan, shows that the Circuit Court, sitting in its appellate capacity, abused its discretion and departed from the essential requirements of the law in refusing to grant Trojan's motion to vacate the dismissal.
Turning to that portion of Trojan's petition for writ of certiorari requesting the entry of a writ to quash the final judgment entered by the County Court awarding attorneys fees to Pelege, we deny the petition as to this issue, with said denial being without prejudice to the petitioner to raise the matter below.
Writ granted in part, denied in part.