Summary
granting writ when motion to supplement record was timely served prior to the due date of the initial brief
Summary of this case from United Auto. Ins. v. Active SpineOpinion
No. 89-2533.
February 7, 1990.
Appeal from the Circuit Court, Broward County, Dale Ross, J.
Marguerita Downey and Robert Downey, Lake Worth, pro se.
Brenda Hacker of Zier Hacker, P.A., Fort Lauderdale, for respondent.
We grant the writ and quash the order of the Broward County Circuit Court dismissing petitioners' appeal from the county court for failure timely to file their initial brief. We remand for further proceedings.
The appeal was filed April 12, 1989. See Rosayn v. Berry, 413 So.2d 460, 461 (Fla. 4th DCA 1982) (document is filed on date a clerk of the court first time stamps the document, regardless of any word appearing over the time stamp). Appellants' motion to supplement the record, filed June 15, 1989, and served no later than June 20, 1989, was served within the seventy day period allowed from filing of the notice of appeal to filing of the initial brief. Fla.R. App.P. 9.110(f). Any motion timely served which is not excepted by rule 9.300(d), tolls the time schedule of any appellate court proceeding until the court disposes of the motion. Fla.R.App.P. 9.300(d). Subsequent motions of both parties served further to toll the time schedule for filing the initial brief. See, e.g., Anderson v. Willis, 402 So.2d 1344 (Fla. 1st DCA 1981). Accordingly, petitioners did not fail timely to file their initial brief; the time to file it had not run.
CERTIORARI GRANTED; ORDER OF DISMISSAL QUASHED; CAUSE REMANDED.
ANSTEAD and GLICKSTEIN, JJ., concur.