Monday, September 27, 2010

Mandamus Petition Denied Due To Available Remedy By Appeal

In R. H. Donnelley Publishing & Advertising, Inc. v. Law Office of Patricia K. Herman, P.A. (5D10-1853), the Fifth District denied a petition for mandamus, filed after the party failed to timely seek appellate review. The court noted in a footnote that it appeared there was merit to the argument being raised, however, since a notice of appeal was not timely filed they did not have jurisdiction to review the error. The court stated:
[The petitioner] asks this Court to excuse its failure to file a timely notice of appeal directed to the circuit court's "Final Judgment," which concluded that it lacked subject matter jurisdiction to adjudicate the parties’ contractual dispute. Instead, Donnelley seeks appellate review, utilizing the instant mandamus petition. “[M]andamus is available ‘[i]f a lower court, without sufficient reason, neglects or refuses to act on a matter within its jurisdiction . . . unless the aggrieved party has an adequate remedy by appeal.’”… Because Donnelley had an adequate remedy available by filing a timely direct appeal, which it failed to do, we conclude that the instant petition should be denied.


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