LAW OFFICE OF ROBERT K. LINCOLN, P.A.

Land Use and Local Government Law and Litigation

The Law Office of Robert K. Lincoln, P.A.  provides legal services to private and public entities involved in complex land use disputes.  Hiring an attorney is an important decision that should not be based solely upon advertisements.  Before you decide, ask and I will provide free information about my experience and qualifications. 

You Do Get Multiple Chances to Get the Record Right on Cert

In this opinion, in Dragomireki v. Town of Ponce Inlet, the 5th reminded the circuit court that the point of the appellate rules is to facilitate effective review, not create hoops to throw out cases.

The convoluted case involves the attempt by the Town of Ponce Inlet to force a guy to tear down his unfinished house becuase of delays and difficulties in finishing it. The man filed a pro se writ of cert against a negative Board of Adjustment and Appeal decision, but didn't file the appendix. Got an order, got an attorney, who then got an extension, filed the appendix and filed an amended petition.

Court didn't like the citations or the Appendix and instead of ordering the Petitioner to file a more complete record (which actually it couldn't do under F R App P 9.220, but if the court wanted it . . . .) it dismissed the petition (which effectively is with prejudice because of the time issue).

Uh, uh, said the 5th:

Although the circuit court noted that dismissal as a sanction is to be used sparingly, the circuit court dismissed the petition, saying that the record was incomplete, confusing and contradictory. Although we do not fault the trial court's frustration, we conclude that, under these circumstances, the sanction of dismissal was too severe. The dismissal deprived the petitioner of the only judicial review of the administrative order of the Town of Ponce Inlet requiring that he demolish his partially built home for building code violations.

It is often very difficult to prepare a proper record in an appellate proceeding such
as this. Municipal boards are not set up well for creating and organizing a record for
appellate review, and this dispute has apparently been raging for over three years,
including eight hearings and voluminous correspondence. It is not uncommon to see
confusion and contradiction, but based on our review, it does not appear that the record was so "incomplete, confusing and contradictory" that the appeal could not proceed. It is the petitioner who has the right to select the issues for review and who has the burden of providing a record adequate to demonstrate error. If petitioner's record is incomplete, he will not be able to demonstrate error and he will fail on the merits.


Yet another reason why we NEED A STATUTE THAT PROVIDES CONSISTENT STANDARDS FOR THE CONTENT OF THE RECORD, PLACES THE RESPSONSIBILITY FOR ITS CREATION AND PRESERVATION ON THE ADMINISTRATIVE TRIBUNAL, AND PROVIDES FOR APPEAL, RATHER THAN CERTIORARI, AS THE AVENUE FOR REVIEW!!!

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Hiring an attorney is an important decision that should not be based solely upon advertisements. Before you decide, ask and I will send you free written information about my qualifications and experience. Additionally, the comments, statements and articles contained herein are general in nature and should not be relied upon as a basis for any legal opinion, action or conclusion on the part of the reader with respect to any particular set of facts or circumstances, or to establish an attorney-client relationship between us.