April 4, 2018

Bresky Law Obtains Dismissal of Appeal for Lack of Prosecution

March 23, 2018

Bresky Law recently assisted an appellee client in successfully obtaining dismissal of an appeal of a postjudgment trial court order.

Our client, who was the plaintiff in the trial court action, obtained a judgment in the trial court awarding our client appellate attorney’s fees incurred in a prior successful appeal in which our firm represented it. The defendants did not appeal the fees judgment or file a motion for rehearing. However, the defendants later filed a motion contesting our client’s right to collect on the full amount of the judgment. The trial court denied the motion and denied the defendants’ motion for rehearing of that order. The defendants appealed.

However, the defendants failed to file an initial brief in the appeals court within the time required by the Florida Rules of Appellate Procedure. We filed a motion asking the appeals court to order the defendants to file an initial brief within ten days, and to dismiss the appeal if defendants failed to do so. The appeals court granted our motion and ordered that an initial brief be filed within ten days of its order. The defendants failed to file the initial brief. The clerk of the lower court also filed a notice informing the appellate court that the defendants had failed to pay for preparation of the record on appeal.

The appeals court dismissed the defendants’ appeal for lack of prosecution. The appeals court also granted our motion for appellate attorney’s fees. The appeals court awarded our client entitlement to appellate attorney’s fees and remanded to the trial court to determine and assess a reasonable amount of attorney’s fees for the appeal. This favorable result for our client resulted in dismissal of the appeal and should allow it to obtain an order in the trial court awarding it the fees incurred for the appeal.