vacating superior court's decision to dismiss case where brief was filed late and instead ordering attorney to pay fees, costs, and $500 fine under Appellate Rule 510
How later courts described this case
- vacating superior court's decision to dismiss case where brief was filed late and instead ordering attorney to pay fees, costs, and $500 fine under Appellate Rule 510
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The opinion
ORDER NO. 28
Appellant Wendy Brown’s motion for full court consideration of the order of December 24, 1992, denying her motion for a ten-day extension for filing her brief and dismissing her appeal has been considered by the full court. This is appellant’s fifth request for a extension of time within which to file her opening brief. The prior requests were granted; however, the fourth request was granted with the notation that “no further extensions will be granted.” Appellant’s counsel, Gary Foster, claims that the fifth request was necessitated by an “unexpected major and preemptive disruption of his schedule, thereby necessitating another non-routine ten-day extension.” Although Foster’s showing is not without some plausibility, the court concludes that Foster has not appropriately planned his schedule or marshalled his resources and that with appropriate planning and marshalling of resources, appellant’s brief could have been filed without the necessity for a fifth extension of time: The court concludes that Foster rather than appellant should bear the cost of his derelictions. Accordingly,
IT IS ORDERED:
The motion is granted. The dismissal of the appeal is vacated and appellant’s opening brief, which has been lodged, shall be filed on March 26, 1993, conditioned on the following:
(1) Foster shall personally pay a $500 fine under Appellate Rule 510(c) and
(2) Foster shall personally pay appel-lee’s actual reasonable fees and costs incurred in opposing the motion for the fifth extension of time and in opposing the present motion for full court reconsideration; such fees and costs shall be assessed by the clerk of court.