LAWRENCE DELLECESE, APPELLANT,
v.
VALUE RENT A CAR AND CIGNA AND FEISCO, APPELLEE

Fla. 1st DCA | 1989-05-23
No. 88-2908
BOOTH, WIGGINTON and BARFIELD, JJ., concur.
543 So. 2d 440 Florida District Court of Appeal, First District (1989)

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Synopsis

Lawrence Dellecese appealed a workers' compensation order that granted limited temporary disability benefits but denied other claims for wage loss, medical treatment, and attendant care. The court dismissed cross appeals filed by the insurers (Feisco and Cigna) as untimely because they were filed without seeking leave of court, establishing that while deadline rules are not jurisdictional, appellees still cannot file cross appeals without permission when the deadline has passed.


Holding

The court held that while the time limits for filing notices of cross appeal are not jurisdictional, an appellee does not have unbridled discretion to file an untimely notice of cross appeal without seeking leave of court. The appellees' failure to seek permission to file late cross appeals rendered the cross appeals dismissible.


Headnotes

[1] The time for filing a notice of cross-appeal is not jurisdictional.

[2] An appellee may not file a notice of cross-appeal at any time without leave of court, even if the time for filing is not jurisdictional.

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Key Quotes

“the times expressed in the rules for filing notices of cross appeal are not jurisdictional”

Establishes that failure to meet cross appeal deadlines does not divest the court of jurisdiction, but does not grant unrestricted filing rights

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Facts & Procedural History

Dellecese, a workers' compensation claimant, suffered an industrial accident and filed for various benefits including temporary disability, wage loss,…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

On November 10, 1988, Lawrence Dellec-ese, claimant in the lower tribunal, timely appealed a workers’ compensation order. The order sought to be reviewed granted two short periods of temporary disability benefits but rejected claims for other temporary benefits, wage loss, medical treatment for psychiatric injuries and attendant care, as the deputy found that many of the claimant’s medical problems were unrelated to any industrial accident.

After the record was received, counsel for appellant sought and obtained an extension of time for service of the initial brief, and the brief was served on March 23, 1989.

On March 15, however, counsel for appellee Feisco served a notice of cross appeal,1 representing that it sought review of the award of temporary disability benefits that followed a fall suffered by appellant at a time when it was the employer’s carrier. Five days later Cigna served a similar notice of cross appeal, showing that it intended to seek review of the deputy commissioner’s determination that some of claimant’s injuries were compensable. Appellant moved to dismiss the cross appeals as untimely and argued that he had been prejudiced by the delay in receiving notice. Appellees/cross appellants responded in opposition to the motion, relying on the well-established principle that the time for filing of a notice of cross appeal is not jurisdictional and citing to Safeco Insurance Co. v. Rochow, 384 So. 2d 163 (Fla. 5th DCA 1980) and Breakstone v. Baron’s of Surfside, Inc., 528 So. 2d 437 (Fla. 3d DCA 1988).

Rule 4.160(d), Florida Workers’ Compensation Rules of Procedure, provides that a notice of cross appeal shall be filed with the deputy commissioner within 10 days of service of the notice of appeal or within 30 days of the mailing of the order to he reviewed, whichever is later. This rule is virtually identical to Rule 9.110(g), Florida Rules of Appellate Procedure, and the decisional law regarding each is persuasive, if not controlling, with regard to construction of the two rules.

Thus, we have no difficulty accepting the maxim that the times expressed in the rules for filing notices of cross appeal are not jurisdictional as announced in Safeco, Breakstone, and numerous other cases. We are not persuaded, however, that it therefore follows that an appellee has unbridled discretion to file a notice of cross appeal, without leave of court, any time before service of the answer brief. See Brickell Bay Club Condominium Association, Inc. v. Forte, 379 So. 2d 1334 (Fla. 3d DCA 1980); see also Nealy v. City of West Palm Beach, 442 So. 2d 273 (Fla. 1st DCA 1983) (refusing to consider appellee’s attack on workers’ compensation order raised for the first time in the answer brief where no notice of cross appeal had been filed).

As we find appellees failed to seek leave of this court to file untimely notices of cross appeal showing good grounds for the delay, we grant appellant’s motion and dismiss the cross appeals.

BOOTH, WIGGINTON and BARFIELD, JJ., concur. . We have found little agreement among authorities as to whether "cross appeal” should be hyphenated. We accordingly adopt the spelling utilized in the Florida Rules of Appellate Procedure.


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