ARVIN PELTZ, PETITIONER,
v.
DISTRICT COURT OF APPEAL, THIRD DISTRICT, ET AL., RESPONDENTS
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Arvin Peltz filed an untimely notice of appeal, and his wife later filed a timely cross-appeal. The Florida Supreme Court held that the District Court of Appeal lacked subject-matter jurisdiction to proceed because the original appeal was untimely, and a cross-appeal cannot independently confer jurisdiction when the underlying appeal is jurisdictionally defective.
No. A cross-appeal is not a jurisdiction-invoking document but rather a cross-assignment of error that must 'piggy back' jurisdictionally on the underlying notice of appeal. Because Arvin Peltz's original notice of appeal was untimely and therefore did not vest the appellate court with jurisdiction, Suzanne Peltz's otherwise-timely cross-appeal could not provide an independent jurisdictional basis for the District Court of Appeal to proceed.
[1] An untimely filed notice of appeal precludes an appellate court from exercising jurisdiction.
[2] Subject-matter jurisdiction cannot be conferred by waiver or consent.
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Join FLexlaw to unlock all legal intelligence“The untimely filing of a notice of appeal precludes the appellate court from exercising jurisdiction.”
Establishes the foundational jurisdictional principle that governs the case
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Join FLexlaw to unlock all legal intelligenceOn February 6, 1991, the circuit court entered an order on exceptions to a general master's report. Arvin Peltz filed a notice of appeal on March 11, …
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GRIMES, Judge.
This is a petition for prohibition which seeks to prevent the Third District Court of Appeal from considering an appeal. We have jurisdiction. Art. V, § 3(b)(7), Fla. Const.
On February 6, 1991, the circuit court entered an order on exceptions to general master’s report. Arvin Peltz, acting pro se, filed a notice of appeal from this order on March 11,1991.
On March 15,1991, the Third District Court of Appeal entered an order to show cause why the appeal should not be dismissed as untimely filed. Three days later, Suzanne Peltz served a notice of cross appeal which was filed on March 21, 1991.
On April 1, 1991, Arvin Peltz served a notice of voluntary dismissal.
The district court of appeal entered an order on April 12, 1991, accepting the voluntary dismissal but stating that the cross appeal would remain pending.
On June 25, 1991, Arvin Peltz filed a motion to dismiss the cross appeal because of lack of subject-matter jurisdiction. This motion was denied. Thereafter, Arvin Peltz, through counsel, filed a renewed motion to dismiss cross appeal. The appellate court also denied this motion and directed Arvin Peltz to file his brief by March 27, 1992.
The untimely filing of a notice of appeal precludes the appellate court from exercising jurisdiction. Hawks v. Walker, 409 So. 2d 524 (Fla. 5th DCA 1982); Pitts v. State, 225 So. 2d 352 (Fla. 1st DCA 1969).
Further, subject-matter jurisdiction cannot be conferred by waiver or consent. Board of Trustees of Internal Improvement Trust Fund v. Mobil Oil Corp., 455 So. 2d 412 (Fla. 2d DCA 1984), approved in part, quashed in part on other grounds, 492 So. 2d 339 (Fla.1986), cert. denied, 479 U.S. 1065, 107 S.Ct. 950, 93 L.Ed.2d 999 (1987); Ringling Bros.-Barnum & Bailey Combined Shows, Inc. v. State, 295 So. 2d 314 (Fla. 1st DCA), cert. denied, 303 So. 2d 644 (Fla.1974).
On the other hand, the time for filing a notice of cross appeal is not jurisdictional and may be extended by the appellate court. Agrico Chemical Co. v. Department of Environmental Regulation, 380 So. 2d 503 (Fla. 2d DCA 1980); Brickell Bay Club Condominium Ass’n v. Forte, 379 So. 2d 1334 (Fla. 3d DCA 1980).
Arvin Peltz’s original notice of appeal was clearly untimely. While the notice of cross appeal was filed within ten days of the filing of the notice of appeal, it was not filed within thirty days of the order on exceptions to general master’s report. Therefore, it could not provide an independent basis for jurisdiction. Moreover, because Arvin Peltz’s original notice of appeal did not vest the appellate court with jurisdiction to proceed, there was no jurisdictional basis upon which the notice of cross appeal could be based.
The Third District Court of Appeal itself, while addressing the issue in a slightly different context in Breakstone v. Baron’s of Surfside, Inc., 528 So. 2d 437, 439 (Fla. 3d DCA 1988), explained:
This court’s jurisdiction to entertain an appeal is invoked solely by the notice of appeal which must timely seek review of an appealable trial court order or orders. Hawks v. Walker, 409 So. 2d 524 (Fla. 5th DCA 1982); Dibble v. Dibble, 377 So. 2d 1001 (Fla. 3d DCA 1979); § 59.081(2), Fla.Stat. (1985). The notice of cross appeal, on the other hand, is not a jurisdiction-invoking document, but instead is in the nature of a cross assignment of error. See supra cases collected at note 1. It therefore follows that the cross appeal must necessarily “piggy back” jurisdic-tionally on the notice of appeal....
This Court’s prohibition power is properly invoked when it appears that a district court of appeal is about to act in excess of its jurisdiction. State ex rel. Cantera v. District Court of Appeal, Third District, 555 So. 2d 360 (Fla.1990); State ex rel. Sarasota County v. Boyer, 360 So. 2d 388 (Fla.1978). The Third District Court of Appeal has no jurisdiction to proceed in this case. Therefore, we grant prohibition.
It is so ordered.
BARKETT, C.J., and OVERTON, McDonald, SHAW, KOGAN and HARDING, JJ., concur.
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Citator
Cited By (27 total)
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Miami-Dade Cnty. v. Peart, 843 So. 2d 363 (Fla. 3d DCA 2003)…’ appeal as it should have, this court may exercise its prohibition power to prevent the lower court from exercising jurisdiction in this case. See Goodwin v. State, 826 So. 2d 1022 (Fla. 3d DCA 2001); Peltz v. District Court of Appeal, Third Dist., 605 So. 2d 865 (Fla.1992). Prohibition granted.…
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McQUAIG v. Wal-Mart Stores, Inc., 789 So. 2d 1215 (Fla. 1st DCA 2001)…or remained to be done by the trial court after the entry of the August 16, 2000 Final Summary Judgment. The notice of appeal being untimely filed, we have no jurisdiction to hear this appeal. See Peltz v. District Court of Appeal, Third District, 605 So. 2d 865, 866 (Fla.1992). Accordingly, this appeal must be, and is hereby, DISMISSED. DAVIS, VAN NORTWICK AND POLSTON, JJ., CONCUR.…
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Sims v. State, 998 So. 2d 494 (Fla. 2008)…ny criminal cases that it has cited pre-date the rules of appellate procedure as they existed before our most [*503] recent amendment of rule 9.141(c)). See dissenting op. at 510-11 & n. 16 (citing, e.g., Peltz v. Dist. Court of Appeal, Third Dist., 605 So. 2d 865 (Fla.1992) (the decision below—i.e., Brafman v. Peltz, 507 So. 2d 1110 (Fla. 3d DCA 1987) (table) — establishes that the case is civil)); State ex reí. Cantera v. Dist. Court of Appeal, Third Dist., 555 So. 2d 360 (Fla.1990) (civil judgment obtained…1 / 2
Previewing 3 of 27 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (14 total)
- Coastal Petroleum Co. v. Am. Cyanamid Co., 492 So. 2d 339 (Fla. 1986)
- Ringling BROS.-BARNUM & Bailey Combined Shows, Inc. v. State, 295 So. 2d 314 (Fla. 1st DCA 1974)
- Hawks v. Walker, 409 So. 2d 524 (Fla. 5th DCA 1982)
- Perry v. Ala. Power Co., 479 U.S. 1065 (U.S. 1987)
- Rozay's Transfer v. Sw. Administrators, Inc., 479 U.S. 1065 (U.S. 1987)
- State of Fla. ex rel. Eduardo Cantera v. Dist. Court OF Appeal, 555 So. 2d 360 (Fla. 1990)
- Dibble v. Dibble, 377 So. 2d 1001 (Fla. 3d DCA 1979)
- The Bd. OF Trs. OF the Internal Improvement Tr. Fund OF the State of Fla. v. Mobil OIL Corp., 455 So. 2d 412 (Fla. 2d DCA 1984)
- State of Fla. ex rel. Sarasota Cnty. v. Chief Judge Tyrie A. Boyer, 360 So. 2d 388 (Fla. 1978)
- Staggers v. Gateway Erectors, 303 So. 2d 644 (Fla. 1974)