JACK AUSTIN AND ANTHEA AUSTIN, APPELLANTS,
v.
B.J. APPAREL CORP., APPELLEE; B.J. APPAREL CORP., APPELLANT, V. SUSAN STONE, APPELLEE
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The Third District Court of Appeal addressed whether B.J. Apparel Corp. could appeal a non-final order denying relief from judgment when the original appeal by the Austins was from a different order. The court held that despite technical defects in the notice of cross-appeal, the appeal could proceed because the opposing party suffered no prejudice and was adequately informed of the order being appealed.
B.J. Apparel's appeal may proceed despite the technically defective label of the notice of cross-appeal. Although the rule governing cross-appeals contemplates an appeal from the same order as the original appeal, dismissal is improper when the adverse party has been plainly advised of the order being appealed and has suffered no prejudice or inconvenience.
[1] A notice of appeal is sufficient if it provides adequate information to identify the judgment being appealed and does not prejudice the appellee.
[2] Deficiencies or ambiguities in a notice of appeal are not grounds for dismissal if the appellee suffers no prejudice or inconvenience.
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Join FLexlaw to unlock all legal intelligence“The rule allowing for a cross appeal contemplates an appeal from the same [order] from which the original appeal is taken”
Establishes the general rule that cross-appeals must be from the same order as the original appeal
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Join FLexlaw to unlock all legal intelligenceB.J. Apparel Corp. moved for relief from judgments in the trial court. On July 27, 1987, the court granted relief from judgment as to the Austins, and…
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DANIEL S. PEARSON, Judge.
In the court below, B. J. Apparel Corp. moved for relief from judgments entered in favor of Anthea Austin, Jack Austin, and Susan Stone. In an order rendered July 27, 1987, the court granted relief from judgment as to the Austins; in an order rendered July 28, 1987, the court denied relief from judgment as to Stone. After the Austins appealed and within thirty days of the Stone order, B. J. Apparel filed in the circuit court a “Notice of Cross-Appeal of Non-Final Order,” the body of which recited:
“NOTICE IS GIVEN that B. J. APPAREL CORP., Plaintiff/Appellant in Consolidated Case Nos. 79-16275 (CA 12) and 81-9150 (CA 12), appeals to the Third District Court of Appeal of Florida, the Order of this Court rendered July 28, 1987. The nature of the order is a non-final order denying the Motion for Relief from Judgment of B. J. APPAREL CORP., which was filed pursuant to Florida Rule of Civil Procedure 1.540, in favor of SUSAN STONE.”
Stone has moved to dismiss B. J. Apparel’s appeal.
Stone correctly points out that “[t]he rule allowing for a cross appeal contemplates an appeal from the same [order] from which the original appeal is taken,” Webb General Contracting, Inc. v. PDM Hydrostorage, Inc., 397 So. 2d 1058, 1059 (Fla. 3d DCA 1981), and that, therefore, B.
J. Apparel cannot cross-appeal the order of July 28, since the Austins’ appeal is from the separate order of July 27.
However, because Stone has been plainly advised of the order being appealed and has suffered no prejudice or inconvenience, the notice’s defective label cannot serve as a basis for dismissal. See Milar Galleries, Inc. v. Miller, 349 So. 2d 170 (Fla.1977) (dismissal improper where appellee is not prejudiced by deficiencies or ambiguities in notice of appeal); Brown v. Winn-Dixie Stores, Inc., 267 So. 2d 78, 80 (Fla.1972) (“[A] notice of appeal is sufficient if it gives the Appellate Court and the adverse party information adequate to identify in the record the judgment intended to be appealed. But primarily, the party moving to dismiss the appeal must show some prejudice or inconvenience caused by the deficiency in the notice of appeal.”); Seaboard Air Line Railroad Co. v. Holt, 80 So. 2d 354 (Fla.1955) (obvious inadvertence which prejudices no one should not defeat right of appeal and the determination of a case on its merits); Puga v. Suave Shoe Corp., 417 So. 2d 678, 679 (Fla. 3d DCA 1981) (“[N]on-jurisdictional and non-prejudicial defects in the notice or other steps in the appellate process are not grounds for dismissal.”) (footnote omitted).
Moreover, unlike in Webb, the notice here was timely filed in the circuit court.1 That it was not accompanied by the appropriate filing fee does not affect the jurisdiction of this court and is a matter that can be now remedied. Williams v. State, 324 So. 2d 74 (Fla.1975); Weintraub v. Alter, 482 So. 2d 454 (Fla. 3d DCA 1986).
Accordingly, the motion to dismiss is denied.2
. It is this serendipitous filing in the circuit court, not required by the cross-appeal rule, Fla.R.App.P. 9.110(g), that gives this court jurisdiction over B. J. Apparel's appeal.
. B. J. Apparel’s appeal should be given a separate case number and thereafter consolidated with Austin’s appeal.
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Dobrick v. Discovery Cruises, Inc., 581 So. 2d 645 (Fla. 4th DCA 1991)…e Notice of Appeal in this ease purports to appeal an order denying a motion for rehearing. We treat this as an appeal from the underlying disposition of [*646] the case, rehearing of which was sought by the motion. See Austin v. B.J. Apparel Corp., 527 So. 2d 206 (Fla. 3d DCA 1987). The further difficulty is that the underlying disposition was an order granting a motion for summary judgment. This court, in Russell v. Russell, 507 So. 2d 661 (Fla. 4th DCA 1987), pointed out that an order simply granting a mo…
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Aguiar v. Doral Hotel & Country Club & Prof'l Administrators, 599 So. 2d 698 (Fla. 1st DCA 1992)…2 So. 2d 273 (Fla.1978); Milar Galleries, Inc. v. Miller, 349 So. 2d 170 (Fla.1977); Skinner v. Florida Power Corp., 564 So. 2d 572 (Fla. 1st DCA 1990); Cobb v. St. Joseph’s Hosp., Inc., 550 So. 2d 1 (Fla. 2d DCA 1989); Austin v. B.J. Apparel Corp., 527 So. 2d 206 (Fla. 3d DCA 1987). Upon consideration of the above authorities, we now conclude that the same test should be applied to defects in notices of appeals which violate rule 4.160(a) as is generally applied to defects in notices filed pursuant to the F…
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Leda Obregon v. Rosana Corp., 232 So. 3d 1100 (Fla. 3d DCA 2017)…ppeal as a cross-appeal does not warrant a dismissal of its appeal where the appeal was timely filed, Obregon has plainly been advised of the order being appealed, and Obregon has suffered no prejudice or inconvenience. Austin v. B.J. Apparel Corp., 527 So. 2d 206, 206-07 (Fla. 3d DCA 1987). See also Milar Galleries, Inc. v. Miller, 349 So. 2d 170, 171-72 (Fla. 1977) (holding that dismissal is improper where there is no prejudice to appellee from deficiencies or ambiguities in the notice of appeal); Brown v.…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Williams v. State, 324 So. 2d 74 (Fla. 1975)
- Seaboard AIR Line R.R. Co. v. Holt, 80 So. 2d 354 (Fla. 1955)
- Robustiano Puga & Medmold, Inc. v. Suave Shoe Corp., 417 So. 2d 678 (Fla. 3d DCA 1981)
- Milar Galleries, Inc. v. Miller, 349 So. 2d 170 (Fla. 1977)
- Webb Gen. Contracting, Inc. v. PDM Hydrostorage, Inc., 397 So. 2d 1058 (Fla. 3d DCA 1981)
- Brown v. Winn-Dixie Stores, Inc., 267 So. 2d 78 (Fla. 1972)
- Weintraub v. Seymour Alter, 482 So. 2d 454 (Fla. 3d DCA 1986)