PAUL DYE, D/B/A RIVER PARK TRAILER PARK, APPELLANT,
v.
RUSSELL REICHARD AND MARJORIE REICHARD, HIS WIFE, APPELLEES

Fla. 2d DCA | 1964-11-06
No. 5293
SMITH, C. J., and WHITE, J., concur.
169 So. 2d 39 Florida District Court of Appeal, Second District (1964) Negative Treatment
Cited by 8 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Paul Dye appealed two separate judgments from a jury verdict in an assault and battery case brought by a married couple. The court held that while a single notice of appeal cannot normally cover two separate judgments, the appellant should be given an opportunity to amend the notice to appeal only one judgment rather than having both appeals dismissed.


Holding

One notice of appeal is insufficient to review two separate judgments where there are two distinct causes of action. However, rather than dismiss both appeals, the appellant should be given thirty days to amend the notice of appeal to address only one of the judgments, with dismissal of both appeals resulting if the amendment is not made.


Key Quotes

“separate notices of appeal are necessary to review separate judgments”

Establishes the general rule that one notice of appeal is insufficient for multiple separate judgments

Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.

Join FLexlaw to unlock all legal intelligence

Facts & Procedural History

Russell and Marjorie Reichard sued Paul Dye for assault and battery. The complaint contained two separate counts: one for severe injuries sustained by…

The full statement of facts, procedural history, and disposition for this case are member content.

Join FLexlaw to unlock all legal intelligence

© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.


Opinion of the Court
SHANNON, Judge.

SHANNON, Judge.

The plaintiffs, a married couple, brought suit against the defendant for assault and battery. The plaintiffs filed one complaint which contained two counts. The first count set out severe injuries sustained by the husband, and the second count set out less serious injuries sustained by the wife when she was pushed by the defendant, after attempting to help her husband. There were two distinct causes of action, neither claim being of a derivative nature. There was one trial, the jury returned two verdicts, one in favor of each plaintiff, and two judgments were entered, one in favor of each plaintiff. The defendant filed one notice of appeal which names each judgment and states where each is recorded. The plaintiffs have filed a motion to dismiss on the grounds that one notice of appeal is insufficient to appeal two separate judgments.

In Orange Belt Packing Co. v. International Agricultural Corp., 1933, 112 Fla. 99, 150 So. 264, our Supreme Court set out the general rule that separate notices of appeal are necessary to review separate judgments. See also Vander Car v. Pitts, Fla.App.1964, 166 So.2d 837, and Borland v. South Patrick Utility Corp., Fla.App. 1960, 122 So.2d 44.

In support of his contention that one notice of appeal is sufficient the appellant cites North American Company v. Landahl, Fla.App.1958, 107 So.2d 749, in which a husband and wife joined together under Fla. Stat., Sec. 46.09, F.S.A., in suing for physical injuries sustained by the wife. The jury returned two verdicts and separate judgments were entered. It was held that one notice of appeal was sufficient because the separate verdicts and judgments were simply allocations of damages to the husband and wife.

*41The case on review is distinguishable, however, in that the husband and wife were suing for injuries caused to each of them individually and separately, whereas, in the Landahl case, supra, the husband’s claim was of a derivative nature. In the case at bar, although there was one complaint and one trial, there were two distinct causes of action. One notice of appeal is not sufficient to obtain review of these two judgments.

Having come to this conclusion we are now presented with the following question: Should both attempted appeals be dismissed or should the appellant be permitted to pursue one of'them?

The notice of appeal contains all of the requisite components for an appeal of either case individually. The fact that a notice of appeal contains surplus verbiage does not make it insufficient, thus we are not inclined to dismiss the appeal as it relates to both judgments. In Rocklin v. State, Fla. 1952, 61 So.2d 484, a defendant filed one notice of appeal which was addressed to six different cases in which he was convicted. The Court ordered that the defendant would have thirty days to amend the notice of appeal by eliminating five of the six cases, thus enabling him to pursue one of the appeals. The Court stated that if the notice of appeal were not so amended, all the purported appeals would be dismissed. The principle of this case was also applied in Simring v. State, Fla.1955, 77 So.2d 833.

Although these were criminal cases we see no reason why this same procedure should not be available to a single appellant in a civil case. In the Orange Belt Packing Co. and Borland cases, supra, the appellants were not given the opportunity to elect to pursue one of the purported appeals. However, in each of those cases there was more than one appellant and it would not have been feasible to have an election. In addition the question of an election was not discussed. In Vander Car, supra, although there were two appellants, the effect of the court’s decision was that there was an appeal from only one judgment because the body of the notice of appeal recited an appeal from only one although the notice was captioned in both cases. Here, again, the question of an election was not discussed. In Rocklin and Simring, supra, as in the case on review, there was only one appellant, and so an election did not present the problem that exists when there is more than one appellant.

It is ordered that the appellant has thirty days to amend his notice of appeal so that it is addressed to only one of the judgments. Failure to do so will result in both purported appeals being dismissed.

SMITH, C. J., and WHITE, J., concur.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • DYE v. Russel Reichard and Marjorie Reichard, 183 So. 2d 863 (Fla. 4th DCA 1966)
    …ce of appeal is insufficient to appeal separate judgments. The Second District Court of Appeal allowed the appellant thirty days to amend his notice of appeal so that it would he addressed to only one of the judgments. Dye v. Reichard, Fla.App.1964, 169 So. 2d 39. The plaintiffs then sought a Writ of Prohibition against the court contending that the appeal should have been dismissed. The Supreme Court ordered the court to consider the appeal of the defendant, Paul Dye, from the judgment in favor of the plain…
  • Burlingham v. Allen, 295 So. 2d 684 (Fla. 1st DCA 1974)
    …(See Orange Belt Packing Co. v. International Agr. Corp., 1933, 112 Fla. 99, 150 So. 264; Vander Car v. Pitts, Fla.App.2d 1964, 166 So. 2d 837; Borland v. South Patrick Utility Corp., Fla.App.2d 1960, 122 So. 2d 44; Dye v. Reichard, Fla.App.2d 1964, 169 So. 2d 39.) Accordingly, a notice of appeal seeking to have reviewed two separate and distinct judgments is defective, but the defect is not jurisdictional. (Stewart v. Codrington, 1908, 55 Fla. 327, 45 So. 809; Dye v. Reichard, supra) Rule 3.2, subd. c FAR,…
  • …tive claim was involved. The defendant then filed a single notice •of appeal from both judgments whereupon the successful plaintiff filed a motion to •dismiss. The District Court of Appeal denied the motion, see opinion recorded in Dye v. Reichard, 169 So. 2d 39, but did so conditionally. The court stated first that one notice of appeal is not sufficient to obtain review of these two judgments and then :gave the appellant thirty days to amend his notice of appeal so that it is addressed to •only one of the…

Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.

Join FLexlaw to unlock all legal intelligence

Authorities Cited

Full citator, related cases, and AI research tools

Open in FLexlaw