WEBB GENERAL CONTRACTING, INC., APPELLANT,
v.
PDM HYDROSTORAGE, INC. AND FEDERAL INSURANCE COMPANY, APPELLEE
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Webb General Contracting appealed a judgment entered against it on an indemnity cross-claim. PDM Hydrostorage and Federal Insurance attempted to file a cross-appeal challenging a separate judgment entered in Webb's favor, but did so outside the thirty-day jurisdictional period. The court dismissed the cross-appeal, holding that cross-appeals cannot be used to seek review of separate judgments favorable to the appellant.
The cross-appeal is dismissed. A cross-appeal functions only to challenge errors in the judgment from which the original appeal is taken, not to seek review of separate and distinct judgments. To appeal a judgment, a party must file a notice of appeal within thirty days of the judgment's rendition; a cross-appeal cannot extend this jurisdictional deadline.
[1] A cross-appeal is proper only when it seeks review of the same judgment from which the original appeal is taken.
[2] A cross-appeal cannot be used to seek review of a distinct and separate judgment favorable to the appellant, even if rendered in the same case.
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Join FLexlaw to unlock all legal intelligence“The rule allowing for a cross-appeal contemplates an appeal from the same judgment from which the original appeal is taken.”
Establishes the fundamental limitation on cross-appeals—they must relate to the same judgment being appealed by the original appellant.
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Join FLexlaw to unlock all legal intelligenceWebb, PDM, and Federal were co-defendants in a suit brought by Benson Electric. Webb cross-claimed against PDM and Federal for breach of contract; PDM…
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PEARSON, DANIEL S., Judge.
Webb General Contracting, Inc., PDM Hydrostorage, Inc. and Federal Insurance Company were co-defendants in a suit brought against them by Benson Electric, Inc. Webb cross-claimed against PDM and Federal alleging breach of contract; PDM and Federal cross-claimed against Webb alleging Webb’s agreement to indemnify them for legal services rendered and costs incurred in defending against Benson’s suit. On February 25, 1981, the trial court entered a final judgment in favor of Webb pursuant to a jury verdict on the cross-claim against PDM and Federal. On the same day, the trial court entered a final judgment in favor of PDM and Federal against Webb on their indemnity cross-claim.
On March 26, 1981, Webb took a timely appeal to this court from the judgment entered against it. Within ten days thereafter, see Fla.R.App.P. 9.110(g), but beyond the jurisdictional thirty days allowed for filing a direct appeal from the judgment entered against it, see Fla.R.App.P. 9.110(b), PDM and Federal filed a timely notice of cross-appeal seeking review of the separate judgment entered against them. Webb has moved to dismiss this cross-appeal.
We grant Webb’s motion and dismiss PDM and Federal’s cross-appeal. The rule allowing for a cross-appeal contemplates an appeal from the same judgment from which the original appeal is taken. Wolfe v. City of Miami, 114 Fla. 238, 154 So. 196 (1934); Brown v. Vancleave, 86 Ky. 381, 6 S.W. 25 (1887). See also 4 Am.Jur.2d, Appeal and Error § 178 (1962). The function of a cross-appeal is to call into question error in the judgment appealed, which, although substantially favorable to the appel-lee, does not completely accord the relief to which the appellee believes itself entitled. It is not the function of a cross-appeal to seek review of a distinct and separate judgment, albeit rendered in the same case below, favorable to the appellant.
Accordingly, in order for PDM and Federal to appeal the February 25, 1981, judgment entered against them, it was incumbent upon them to file a notice appealing that judgment within thirty days from its rendition. Even assuming, arguendo, that PDM and Federal could have effectively appealed this judgment through a “notice of cross-appeal,” see, e. g., Brown v. Winn-Dixie Stores, Inc., 267 So. 2d 78 (Fla.1972); Hollimon v. State, 232 So. 2d 394 (Fla.1970), such a notice would have had to be timely filed. The cross-appeal taken by PDM Hydrostorage, Inc. and Federal Insurance Company is
Dismissed.
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Citator
Cited By (18 total)
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Breakstone v. Baron's OF Surfside, Inc., 528 So. 2d 437 (Fla. 3d DCA 1988)…ellee believes itself entitled. It is not the function of a cross-appeal to seek review of a distinct and separate judgment, albeit rendered in the same case below, favorable to the appellant.” Webb Gen. Contracting, Inc. v. PDM Hydrostorage, Inc., 397 So. 2d 1058, 1059-60 (Fla.3d DCA 1981). By this we mean that a cross appeal is not a separate appeal in itself but “rides along” with the main appeal — that is, the cross appeal contemplates, jurisdictionally speaking, an appeal from the same judgment from whic…
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Gwen Fearing Real Est., Inc. v. Wilson, 430 So. 2d 589 (Fla. 4th DCA 1983)…ment interest since they have dismissed their cross-appeal from the principal claim. .Their cross-appeal directed to the order assessing costs and attorney fees does not preserve the error for review. Webb Gen. Contracting v. PDM Hydrostorage, Inc., 397 So. 2d 1058 (Fla. 3d DCA 1981). Accordingly we reverse and remand this case to the trial court for a new trial. Reversed and remanded. HURLEY, J., and WILLIAM C. OWEN, Jr., Associate Judge, concur. . Originally only Clifford Wilson executed the contract, la…
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Florida Windstorm Underwriting v. Anil Gajwani, 934 So. 2d 501 (Fla. 3d DCA 2005)…a separate and different judgment than that appealed by FWUA. We agree with Lexington, based on our decisions in Breakstone v. Baron’s of Surfside, Inc., 528 So. 2d 437 (Fla. 3d DCA 1988) and Webb General Contracting, Inc. v. PDM Hydrostorage, Inc., 397 So. 2d 1058 (Fla. 3d DCA 1981). In Webb, Webb, PDM Hyrdrostorage, and Federal Insurance Company were co-defendants in a lawsuit. Id. at 1059. Webb cross-claimed against PDM and Federal alleging breach of contract, and PDM and Federal cross-claimed against Webb…
Previewing 3 of 18 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Brown v. Winn-Dixie Stores, Inc., 267 So. 2d 78 (Fla. 1972)
- Obbie Lee Hollimon and Cleveland Williams v. State, 232 So. 2d 394 (Fla. 1970)
- Wolfe v. City of Miami, 114 Fla. 238 (Fla. 1934)