       Third District Court of Appeal
                              State of Florida

                         Opinion filed April 11, 2018.
                             ________________

                               Nos. 3D18-0250
     Lower Tribunal Nos. 16-404, 16-405, 16-406, 16-407, 16-408, 16-466,
16-467, 16-468, 16-469, 16-470, 16-473, 16-474, 16-475, 16-476, 16-477, 16-478,
                              16-479, & 16-491
                             ________________


                    Windhaven Insurance Company,
                                   Petitioner,

                                      vs.

Biscayne Rehab Center, Inc., Martinez Chiropractic, Llc, Palmetto
 Wellness Clinic, Llc, Progressive Rehabilitation and Orthopedic
       Services, Llc, and West Kendall Rehab Center, Inc.,
                                 Respondents.



      A Writ of Certiorari to the Circuit Court for Miami-Dade County, Appellate
Division, Jose M. Rodriguez, David C. Miller, and Antonio Arzola, Judges.

      Akerman LLP, Marcy Levine Aldrich, Nancy A. Copperthwaite, and Ross
E. Linzer, for petitioner.

      The Coyle Law Firm, P.A., and Melisa Lee Coyle, for respondents.


Before EMAS, FERNANDEZ and LINDSEY, JJ.

      ON CONFESSION OF ERROR
      LINDSEY, J.

      In this petition for writ of certiorari, Windhaven Insurance Company

(“Windhaven”) seeks reinstatement of eighteen consolidated appeals which were

dismissed by the appellate division of the circuit court for failure to timely file an

initial brief. Upon commendable confession of error by Respondents Biscayne

Rehab Center, Inc. Martinez Chiropractic, LLC, Palmetto Wellness Clinic, LLC

and West Kendall Rehab Center, Inc., and because the appellate division of the

circuit court entered conflicting orders and failed to afford Windhaven notice that

the appeals would be dismissed, we grant the petition and quash the order of

dismissal.

      In late 2016, Windhaven filed notices of appeals of summary judgments

entered by the county court in Respondents’ favor. The appeals were subsequently

consolidated by an administrative judge of the appellate division of the circuit

court. On February 23, 2017, April 26, 2017, June 29, 2017, and September 18,

2017, Windhaven filed unopposed motions for extension of time to file its initial

brief. Each of the four orders granting these extensions is stamped with the

notation: “Failure to comply with this order may result in dismissal of the appeal or

other sanction.” The fourth order granted an extension through October 5, 2017.

      On October 4, 2017, just one day prior to the deadline imposed by the fourth

order granting an extension, Windhaven filed a fifth motion for extension of time


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to file its initial brief. On October 5, 2017, Respondents filed their objection to

Windhaven’s fifth motion and moved for dismissal of the appeals, contending that

the initial brief had not been filed by the October 5, 2017 deadline and no motion

for continuance had been granted. Moreover, Respondents requested dismissal

“based upon the undue delay of [Windhaven] in filing its [i]nitial [b]rief.”

      Thereafter, on October 6, 2017, an associate administrative judge of the

appellate division granted Windhaven’s fifth motion and entered an order

extending the time through December 4, 2017 for the filing of the initial brief. The

extension order is stamped with the notation: “No further extensions will be

granted and failure to comply with this order will result in the dismissal of this

appeal.”

      On October 20, 2017, Windhaven filed its response in opposition to

Respondents’ motion to dismiss the appeals, requesting that the motion be denied

as moot and frivolous in light of the fact that an order granting Windhaven’s fifth

motion for an extension through December 4, 2017 had already been entered. On

October 25, 2017, just five days after Windhaven had filed its response in

opposition to Respondents’ motion to dismiss the appeals, the appellate panel

entered an unelaborated order granting Respondents’ motion to dismiss

Windhaven’s appeals.

      On November 6, 2017, Windhaven filed a motion for rehearing and



                                          3
clarification, requesting that the appellate panel vacate the order of dismissal on the

grounds it conflicts with the October 6, 2017 extension order entered by the

associate administrative judge and violates Windhaven’s due process rights. On

November 8, 2017, Respondents filed their response to the motion for rehearing

and clarification, wherein they conceded that the appellate panel erred procedurally

and should have issued a direction to file the initial brief with a warning that failure

to do so would result in dismissal.

      On December 4, 2017, Windhaven filed its initial brief. On December 14,

2017, Respondents filed a motion for extension of time to file their answer brief.

On December 18, 2017, another associate administrative judge of the appellate

division granted an extension through February 24, 2018 for the filing of the

answer brief. On January 23, 2018, the appellate panel, in an unelaborated order,

denied Windhaven’s motion for rehearing and clarification. This petition for writ

of certiorari follows.

      This Court has jurisdiction pursuant to Florida Rule of Appellate Procedure

9.030(b)(2)(B) to review final orders of circuit courts acting in their review

capacity. In considering a petition for second-tier certiorari review, 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.”     I Creatives, Inc. v. Premier Printing



                                           4
Solutions, Inc., 163 So. 3d 606, 607 (Fla. 3d DCA 2015) (citing Ivey v. Allstate,

774 So. 2d 679, 680 (Fla. 2000)).

      “Florida Rule of Appellate Procedure 9.300(b) provides for tolling

proceedings pending disposition of certain motions. A motion for extension of

time to file a brief tolls the time for filing until the motion is ruled on.” Nicaragua

Trader Corp. v. Alejo Fla. Props., LLC, 19 So. 3d 395, 397 (Fla. 3d DCA 2009)

(citing Kuznik v. State, 604 So. 2d 37 (Fla. 2d DCA 1992)).

      Here, Windhaven filed its fifth motion for extension of time on October 4,

2017, just one day prior to the October 5, 2017 deadline imposed by the order

granting the fourth motion for an extension.               Respondents argued that

Windhaven’s appeals should be dismissed because the initial brief had not been

filed by October 5, 2017 and no motion for continuance had been granted.

However, pursuant to Rule 9.300(b), the time was tolled by the filing of

Windhaven’s fifth motion – on October 4, 2017 -- until disposition of that motion.

      Although an appeal may be dismissed for failure to file an initial brief, it is

well settled “that dismissal of an appeal without a prior notice warning of

imminent dismissal is a denial of due process.” I Creatives, Inc., 163 So. 3d at

607-608; United Auto. Ins. Co. v. Total Rehab & Med. Ctr., 870 So. 2d 866, 869

(“[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



                                           5
there has been fair warning, in advance, that this consequence may flow from a late

filing.”); see also Nicaragua Trader Corp., 19 So. 3d at 397 (“The failure to timely

file a brief has not been deemed serious enough to warrant the sanction of

dismissal.”). Although the appellate rules do not specify the number of days of

notice that must be given prior to granting a motion to dismiss an appeal, this

Court has indicated that a ten-day warning is likely to be sufficient. I Creatives,

Inc., 163 So. 3d at 607 (citing United Auto Ins. Co., 870 So. 2d at 869 n.3).

      Here, the appellate panel gave Windhaven no warning that the appeals

would be dismissed. As in Nicaragua Trader Corp., the first four orders granting

extensions of time for filing the initial brief stated that “failure to comply with this

order may result in dismissal. . . .” 19 So. 3d at 397 (quashing the dismissal order

where “the record shows no order specifically warning the appellant that his appeal

would be dismissed if the brief was not filed within ten days”). In contrast, the

fifth extension order stated that “failure to comply with this order will result in the

dismissal of this appeal.” (Emphasis added).

      The dismissal order and the order denying Windhaven’s motion for

rehearing and clarification entered by the appellate panel both conflict with the

fifth extension order entered by the associate administrative judge. Moreover, this

fifth extension order was entered prior to the entry of either of the foregoing

orders.1 In addition, Windhaven filed its initial brief in compliance with the fifth



                                           6
extension order’s deadline of December 4, 2017. Because Windhaven was given

no notice of imminent dismissal of its appeals, Windhaven was deprived of

procedural due process and we “conclude that there has been a departure from the

essential requirements of law, as the law in this area is well-established.” United

Auto Ins. Co., 870 So. 2d at 869; accord Miami-Dade Med. Ctrs., Inc. v. MGA Ins.

Co., 908 So. 2d 1175 (Fla. 3d DCA 2005).

      Accordingly, Respondents’ confession of error is well taken. Therefore, we

grant the petition for writ of certiorari, quash the order of dismissal, and remand

for reinstatement of the appeals.

      Petition granted; order quashed.




1 Given the flurry of activity in the case below in a relatively short period of time
which extended over the end of the year holiday season, perhaps the relevant
filings and orders were unavailable to the appellate panel at the time it entered its
orders dismissing Windhaven’s appeals and denying Windhaven’s motion for
rehearing and clarification of the order of dismissal.

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