Milar Galleries, Inc. v. Miller

• Decision Date: 02 June 1977
• Docket Number: No. 49903,49903
• Citation: 349 So.2d 170
• Parties: MILAR GALLERIES, INC., a Florida Corporation, Bertha Weisberg, Julius Weisberg, Frank J. Denaro, Harriette C. Denaro, Petitioners, v. Sonia MILLER, Respondent.
• Court: Florida Supreme Court

Page 170

349 So.2d 170

MILAR GALLERIES, INC., a Florida Corporation, Bertha Weisberg, Julius Weisberg, Frank J. Denaro, Harriette C. Denaro, Petitioners, v.Sonia MILLER, Respondent.

No. 49903.

Supreme Court of Florida.

June 2, 1977.

Rehearing Denied Sept. 21, 1977.

Nat Gursten, North Miami, for petitioners.

Michael A. Reichman, of Franklin D. Kreutzer, Miami, for respondent.

SUNDBERG, Justice.

This cause is a petition for writ of certiorari to review an unreported order of the District Court of Appeal, Third District, Case No. 76-280(Fla.3d DCAJune 10, 1976)(order granting motion to dismiss), which is alleged to be in conflict with Webster v. State, 235 So.2d 499(Fla.1970), Lowe v. State, 184 So.2d 164(Fla.1966), andBurlingham v. Allen, 295 So.2d 684(Fla.1st DCA1974), upon the issue of the sufficiency of the content of a notice of appeal.Jurisdiction vests in this Court pursuant to Article V, Section 3(b)(3), Florida Constitution.

Petitioners filed suit against respondent in circuit court seeking damages allegedly caused by respondent's fraudulent representations.Subsequently, respondent retaliated by filing suit against petitioners, seeking to foreclose a mortgage on certain personal property owned by and in possession of petitioners.Upon motion by respondent, the circuit court consolidated the two causes for trial, since each arose from the same set of facts and involved basically identical questions of law.At the culmination of the proceeding, the trial court rendered a final decree of foreclosure and a final judgment and directed verdict in favor of respondent and against Milar Galleries, Inc., et al.Petitioners timely filed a single notice of appeal seeking review of the two final judgments.The style of the notice of appeal properly specified case designations of the consolidated proceedings in the circuit court.However, the notice of appeal stated that: "Milar Galleries, Inc., plaintiffs in Case No. 75-5442 in the above styled cause, takes and enters its Appeal to the Third District Court of Appeal of Florida to review the Order, Judgment and Decree of the Circuit Court of the 11th Judicial Circuit in and for Dade County, Florida."Only the corporate appellant was specifically named in the notice of appeal.The term "et al." was included in the style but was omitted in the body of the notice.Respondent sought a dismissal of the appeal on the grounds that: (1)appellant only filed a single notice of appeal from two separate and distinct judgments, thereby resulting in prejudice to respondent as it became difficult to file a proper motion to quash the appeal, and (2) the notice of appeal was vague since the style of the notice of appeal included all the plaintiffs below, whereas the notice itself included only the corporate plaintiff.Respondent's motion to dismiss the appeal was filed subsequent to the entry of petitioners' assignments of error and brief which referred to the individual plaintiffs below as well as the corporation plaintiff.The District Court of Appeal, Third District, citing Borland v. South Patrick Utility Corporation, 122 So.2d 44(Fla.2d DCA1960), entered an order dismissing the appeal as to the second enumerated judgment and striking from the appeal all parties except the named corporate plaintiff.It is from this order that petitioners have requested this Court to exercise its discretionary review.

The purpose of a notice of appeal is to disclose to an adverse party and the reviewing court that an appeal from an appealable order, judgment or decree of the trial court is intended.Seaboard Air Line R. R. v. Holt, 80 So.2d 354(Fla.1955).As long as parties have received that notice and have not been prejudiced by any deficiencies or ambiguities in the notice of appeal, the dismissal of such an appeal is inconsistent with the concept of appellate review and with proper administration of justice.SeeRobbins v. Cipes, 181 So.2d 521(Fla.1966).

These sentiments were codified in Fla.App. Rule 3.2c. which states in part:

Deficiencies in form or substance in the notice of appeal shall not be jurisdictional and shall not be ground for dismissal of the appeal unless it be clearly shown that the complaining party was misled or prejudiced by such deficiencies.

In accordance with the intent of this rule, we are unable to sustain the order of the District Court of Appeal, Third District.

Where two cases are consolidated for trial, and there are common issues of law and fact, as in the instant cause, a single notice of appeal describing separate judgments is sufficient unless the deficiency causes prejudice to the adversary.SeeWebster v. State, supra;Lowe v. State, supra.Here, respondent herself moved for consolidation on the ground that both causes involved identical questions of law.Further we are unable to accept respondent's contention that she was prejudiced by the deficiency in the notice.The notice of appeal states that petitioners seek to have reviewed "the Order, Judgment and Decree of the Circuit Court . . . ."Both the decree and the judgment are identified by full title, date of issuance, date of recording, and book and page number of recording.

Respondent finds solace...