I Creatives, Inc. v. Premier Printing Solutions, Inc. ( 2015 )


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  •        Third District Court of Appeal
    State of Florida
    Opinion filed April 8, 2015.
    Not final until disposition of timely filed motion for rehearing.
    ________________
    No. 3D14-2890
    Lower Tribunal No. 14-233
    ________________
    I Creatives, Inc.,
    Petitioner,
    vs.
    Premier Printing Solutions, Inc., et al.,
    Respondents.
    A Writ of Certiorari to the Circuit Court for Miami-Dade County, Maria
    Verde, Marisa Tinkler Mendez, and Milton Hirsch, Judges.
    Seipp, Flick & Hosley and Douglas H. Stein, for petitioner.
    Reppas & Brannelly and George C. Palaidis, Michael J. Reppas and Colleen
    Brannelly (Plantation), for respondents.
    Before SHEPHERD, C.J., and EMAS and SCALES, JJ.
    SHEPHERD, C.J.
    I Creatives, Inc., seeks certiorari relief from a dismissal of its appeal to the
    circuit court appellate division of a final judgment of the county court for failure to
    timely file its initial brief. Because the court failed to afford the appellant post-
    failure notice that the appeal may be dismissed, we grant the petition and quash the
    order of dismissal.
    On May 22, 2014, a final judgment was entered against I Creatives in the
    county court. I Creatives then filed a notice of appeal in the circuit court from the
    judgment. The notice was signed by its president alone,1 but was filed and served
    electronically by I Creatives’ trial counsel, Ms. Marquez. The clerk of the circuit
    court appellate division acknowledged receipt of the appeal by letter to I Creatives’
    president on June 23, 2014. The acknowledgement stated appellant’s initial brief
    was due on August 4, 2014,2 and warned that failure to file the brief by the given
    date “shall result in the dismissal of the case.”
    On July 28, 2014, Sinead Baldwin, Esq., of Jorge M. Abril, P.A., filed a
    notice of appearance in the appeal on behalf of I Creatives. On August 5, 2014, the
    clerk of the court filed the index to the record, listing Ms. Baldwin as the attorney
    1“It is well recognized that a corporation, unlike a natural person, cannot represent
    itself and cannot appear in a court of law without an attorney.” Szteinbaum v.
    Kaes Inversiones y Valores, C.A., 
    476 So. 2d 247
    , 248 (Fla. 3d DCA 1985). The
    circuit court appellate division should have required appellant to refile its notice
    through an attorney. See Telepower Commc’ns, Inc. v. LTI Vehicle Leasing
    Corp., 
    658 So. 2d 1026
     (Fla. 4th DCA 1995).
    2The correct date was August 29, 2014.           See Fla. R. App. Proc. 9.110(f)
    (“Appellant’s brief shall be served within 70 days of filing the notice.”)
    2
    of record for appellant. On September 11, 2014, appellees moved to dismiss the
    appeal on the ground the initial brief had not been filed. The motion to dismiss
    was served on Ms. Marquez but, due to an error by appellees’ counsel in entering
    Ms. Baldwin’s email address, the motion did not reach appellate counsel for I
    Creatives.   On October 2, 2014, the circuit court appellate division granted
    appellees’ motion and dismissed the appeal; I Creatives’ subsequent motion to
    vacate the dismissal was denied.
    In considering a petition for second-tier certiorari review from a circuit court
    appellate division decision, this court exercises its discretion to grant review only
    when the circuit court has not afforded procedural due process or has violated a
    clearly established principle of law resulting in a miscarriage of justice. Ivey v.
    Allstate, 
    774 So. 2d 679
    , 680 (Fla. 2000). We conclude the dismissal in the instant
    action violated I Creatives’ right to procedural due process.
    It is well established that an appeal may be dismissed for failure to file an
    initial brief. Fla. R. App. P. 9.410; see also Fla. Capital Mgmt., LLC v. Town of
    Palm Beach, 
    114 So. 3d 389
     (Fla. 4th DCA 2013). However, it is equally well
    settled in this district that dismissal of an appeal without a prior notice warning of
    imminent dismissal is a denial of due process. See, e.g., Nicaragua Trader Corp. v.
    Alejo Fla. Props., LLC, 
    19 So. 3d 395
     (Fla. 3d DCA 2009); Miami-Dade Med.
    Ctrs., Inc. v. MGA Ins. Co., 
    908 So. 2d 1175
     (Fla. 3d DCA 2005); United Auto.
    3
    Ins. Co. v. Total Rehab & Med. Ctr., 
    870 So. 2d 866
     (Fla. 3d DCA 2004). Florida
    Rule of Appellate Procedure 9.410 authorizes an appellate court to dismiss a case
    on its own motion, but only after ten-days’ notice warning of possible dismissal.
    Although the rules do not specify the number of days notice that must be given
    before granting a motion to dismiss, this court has indicated that a ten-day notice is
    likely to be sufficient. United Auto. Ins. Co., 
    870 So. 2d at 869, n. 3
     (“For
    example, where the court becomes aware that the initial brief has not been filed,
    but there was no previous ‘no further extensions’ order, it is customary to enter an
    order giving the party ten days to file the initial brief with a warning that failure to
    comply may result in dismissal of the appeal.”).
    Respondents argue that the clerk’s acknowledgement letter, albeit with an
    incorrect due date, was sufficient to meet due process requirements. We disagree.
    A dismissal for failure to file a brief is a “sanction” imposed upon a party for
    failure to comply with the rules of the court, terminating the party’s rights to a
    merits decision by the court.      Implicit within the concept is some degree of
    disrespect for court processes bordering on, if not explicitly constituting, willful
    noncompliance. See Johnson v. Skarvan, 
    27 So. 3d 178
     (Fla. 5th DCA 2010); see
    also Florida Bar v. Norkin, 
    132 So. 3d 77
     (Fla. 2013). Mere noncompliance with a
    pre-failure communication by the clerk of the court does not ipso facto reach that
    level of disrespect.
    4
    Because Ms. Baldwin, I Creatives’ appellate counsel of record, did not
    receive any post-failure notice warning that the appeal was about to be dismissed
    for failure to file an initial brief, I Creatives was deprived of procedural due
    process. Accordingly, we grant the petition, quash the October 2, 2014 order
    dismissing the appeal, and remand for further proceedings.
    5