Craft v. John Sirounis and Sons, Inc.

• Citation: 574 So.2d 167,16 Fla. L. Weekly 6
• Decision Date: 19 December 1990
• Docket Number: No. 89-2359,89-2359
• Parties: 16 Fla. L. Weekly 6 Bruce CRAFT, Appellant, v. JOHN SIROUNIS AND SONS, INC., Ira Israel, Thomas Joseph Lanadore, Richard Rhodes, James Young, the City of Deerfield Beach, and the City of Fort Lauderdale, Appellees.
• Court: Florida District Court of Appeals

Page 167

574 So.2d 167

16 Fla. L. Weekly 6

Bruce CRAFT, Appellant, v. JOHN SIROUNIS AND SONS, INC., Ira Israel, Thomas Joseph Lanadore, Richard Rhodes, James Young, the City of Deerfield Beach, and the City of Fort Lauderdale, Appellees.

No. 89-2359.

District Court of Appeal of Florida Fourth District.

Dec. 19, 1990.

Carlos A. Rodriguez of Wilson and Rodriguez, Fort Lauderdale, for appellant.

Richard P. McCully of Gunther & Whitaker, P.A., Fort Lauderdale, for appellee, City of Fort Lauderdale.

ON MOTION TO CORRECT RECORD

GARRETT, Judge.

Appellant moves to have this court consider a final order as part of the record. In essence, appellant wants to amend his notice of appeal so that it includes the final order.

On August 8, 1989, the trial judge signed an order which granted the City of Fort Lauderdale's (Fort Lauderdale) motion for summary judgment against appellant. Evidently, Fort Lauderdale's attorney was aware of Russell v. Russell, 507 So.2d 661 (Fla. 4th DCA 1987), because on August 14, 1989, he went back before the same judge to get and file the final order. ¹

On September 6, 1989, appellant timely filed a notice of appeal stating:

NOTICE IS GIVEN that [appellant] appeals ..., the Order of [the trial court] rendered August 8, 1989. The nature of the Order is a final order entitled 'Final Summary Judgment.'

Appellant never filed a notice of appeal that mentioned an August 14, 1989 order. On June 18, 1990, this court sua sponte dismissed the appeal "pursuant to Russell v. Russell," because the August 8, 1989 order lacked words of finality. Appellant then moved for rehearing, but, apparently, overlooked that the notice of appeal referred to a final order. The motion only argued that the August 8, 1989 order was appealable:

The order entered in our case was a final order and Russell is inapplicable because the Circuit Court order states that the 'Motion for Summary Judgement is granted,' ... and is not an Order of Dismissal.

On July 25, 1990, we denied rehearing. About ninety days later, appellant moved to "correct record" and attached a copy of the final order dated August 14, 1989.

The proceedings have left appellant without any avenue of appeal. His appeal of the August 8, 1989 order has been dismissed by us as nonappealable and the thirty days to appeal the August 14, 1989 order has long passed. However, for good cause shown, we have the power to reinstate a dismissed appeal. Mitchell v. State, 294 So.2d 395, 397 (Fla. 1st DCA 1974). Such "power of an appellate court to reinstate an appeal [is] unaffected by time limits." Maffea v. Moe, 483 So.2d 829, 831 (Fla. 4th DCA 1986). Here, the good cause is that a final order did exist at the time of the notice of appeal. Knowing that a final order existed allows us to view the notice of appeal in a new light. We now see the notice as ambiguous and only technically defective. The notice appealed the August 8, 1989 order, but stated that the nature of the appealed order was "a final order entitled 'Final Summary Judgment.' " The August 8, 1989 order was entitled, "ORDER RE: DEFENDANT'S MOTION FOR SUMMARY JUDGEMENT," not "Final Summary Judgment." The final order was rendered on August 14th, not August 8th. The notice of appeal should have read:

NOTICE IS GIVEN that [appellan...