Norm Burg Const. Corp. v. Jupiter Inlet Corp.

• Decision Date: 05 November 1987
• Docket Number: No. 68502,68502
• Citation: 12 Fla. L. Weekly 551,514 So.2d 1102
• Parties: 12 Fla. L. Weekly 551 NORM BURG CONSTRUCTION CORPORATION, Petitioner, v. JUPITER INLET CORPORATION, Respondent.
• Court: Florida Supreme Court

Page 1102

514 So.2d 1102

12 Fla. L. Weekly 551

NORM BURG CONSTRUCTION CORPORATION, Petitioner, v. JUPITER INLET CORPORATION, Respondent.

No. 68502.

Supreme Court of Florida.

Nov. 5, 1987.

R. Fred Lewis of Magill & Lewis, P.A., Miami, for petitioner.

Kathryn M. Beamer of Schuler & Wilkerson, and Larry Klein, of Klein & Beranek, P.A., West Palm Beach, for respondent.

PER CURIAM.

The Fourth District Court of Appeal certified to this Court its decision in this case, Jupiter Inlet Corp. v. Brocard, 489 So.2d 49 (Fla. 4th DCA 1986), as presenting a question of great public importance. The decision under review is the district court's denial of petitioner Norm Burg Construction Corporation's motion to be dismissed from an appeal where it was named an appellee. We have jurisdiction. Art. V, § 3(b)(4), Fla. Const.

The plaintiff, the surviving spouse of a deceased construction worker, filed a wrongful death action against respondent Jupiter Inlet Corporation (Jupiter Inlet). Jupiter Inlet filed a third-party claim against petitioner Norm Burg Construction Corporation (Norm Burg) seeking common law and contractual indemnity. The claim for contractual indemnity was severed for subsequent determination by the trial judge alone. The third-party claim based on common-law indemnity was tried to the jury along with the plaintiff's negligence claim.

The jury found in favor of the plaintiff and against Jupiter Inlet on the wrongful death claim and in favor of Norm Burg and against Jupiter Inlet on the common-law indemnity claim. Jupiter Inlet filed a motion for new trial which addressed both of the jury's findings.

After denial of the motion for new trial, the trial court rendered a judgment in the wrongful death action, adjudging that the plaintiff should recover money damages in a specified amount from Jupiter Inlet. The judgment did not adjudicate any portion of the dispute between Jupiter Inlet and Norm Burg, and neither Norm Burg nor the issue of indemnification is referred to in that final judgment. Jupiter Inlet filed a notice of appeal of this judgment, naming Norm Burg as an appellee.

Following the rendition of judgment in the wrongful death action, the severed claim for contractual indemnity was tried. A second final judgment was rendered adjudicating the claim of Jupiter Inlet for indemnity from Norm Burg, based in part on the jury's verdict on the common-law indemnity claim and in part on the judge's determination of the contractual indemnity claim. The second final judgment denied recovery to Jupiter Inlet from Norm Burg on its claims for indemnity. Jupiter Inlet did not appeal the second final judgment.

Norm Burg filed a motion to be dismissed from Jupiter Inlet's appeal of the first final judgment on the ground that the final judgment did not affect any legal rights or liabilities of Norm Burg. The district court of appeal denied the motion to dismiss, reasoning that the notice of appeal of the first final judgment vested jurisdiction in the appellate court as to Burg and the issue of common-law indemnity, even though adjudication of the third-party claim for indemnity was not final until the rendition of the second final judgment, which Jupiter Inlet did not appeal. The district court certified the following question:

Does a notice of appeal filed after jury verdict but before an appropriate final judgment remain in limbo as to any aspect of the jury verdict which is not reflected in such final judgment filed thereafter, but is eventually reflected in a subsequently rendered final judgment?

Jupiter Inlet Corp., 489 So.2d at 51. We answer the question in the negative and quash the decision of the district court.

The district court of appeal upheld the position of Jupiter Inlet "that its notice of appeal addressed to the final judgment of February 15 reached any issue inhering in the jury verdict, whether or not enunciated in the final judgment, and therefore constitutes an appeal of the adjudication on the issue of common-law indemnification." Id. at 50. The district court stated that one of the functions of a notice of appeal is to give notice to the adverse party that an appeal is being taken. The court found this function had been adequately performed in that Norm Burg was on notice that Jupiter regarded its appeal as encompassing the matter of the common-law indemnity claim. The other function that a notice of appeal must fulfill, the district court said, is to vest jurisdiction in the appellate court. In support of its finding that jurisdiction was vested, the district court discussed this Court's decision in Williams v. State, 324 So.2d 74 (Fla.1975).

Petitioner argues that Williams v. State arose in an entirely different situation and should not be applied in this case. Petitioner maintains that a notice of appeal directed to one final judgment cannot vest appellate jurisdiction to review a wholly separate and independent final judgment rendered subsequently.

In Williams v. State, the defendant was found guilty of a criminal offense by jury verdict on August 13, 1973. On August 24, 1973, post-trial motions were denied, judgment was announced, sentence was imposed, and appeal bond was set in open court. Written judgment and sentence were signed that same day in chambers. Notice of appeal was also filed that same day. However, the judgment was not considered "rendered," in the sense of being filed for recording, until August 28. The state moved to dismiss the appeal on the ground that a notice filed four days before the judgment was rendered was ineffective to vest jurisdiction of the appeal.

The Court acknowledged that the notice of appeal was "premature." Id. at 79. However, the Court noted that the judgment had "conditioned the grant of supersedeas bond upon the filing of the notice of appeal" thus placing the defendant in "an untenable position," so that it was "understandable that the defendant would file his notice of appeal so as to be eligible for such bond at the earliest possible time." Id.

Because of this situation, we now hold that a defendant may, for the purposes of obtaining supersedeas bond, file his notice of appeal at any time after oral judgment or sentence is pronounced and before it is rendered, i.e., filed for recording. Prior to the judgment, the notice of appeal shall not be effective to vest jurisdiction in the appellate court, but will allow the defendant to obtain supersedeas bond. At the time when the judgment and/or sentence is rendered (filed for recording) the notice of appeal shall be effective to vest jurisdiction in the appellate court. It must be noted that notice of appeal so filed (to obtain supersedeas before judgment is rendered) shall not be subject to dismissal either by motion of the parties or of the Court.

Leaving aside the question of obtaining supersedeas bond, we also hold that a notice of appeal which is prematurely filed shall not be subject to dismissal. Rather, such a notice of appeal shall exist in a state of limbo until the judgment in the respective civil or criminal case is rendered. At the time of rendition, the notice of appeal shall mature and shall vest jurisdiction in the appellate court.

Thus, a notice of appeal which is filed after the oral pronouncement of judgment and/or sentence, but before rendition thereof, is not to be dismissed on the grounds that it is premature. This rule shall apply to such situations as when the defendant filed his notice of appeal:

1. After oral pronouncement of judgment, but before the judgment is reduced to writing and signed.

2. After the written judgment is signed, but before it is rendered (filed for recording).

3. After the written judgment is filed for recording, but before a post-trial motion is decided.

Id. at 79-80.

We agree with petitioner that Williams is simply inapplicable to this case. First, this is not a case where a party was required to file a premature notice of appeal in order to obtain a supersedeas bond. Second, here there was no notice of appeal addressed to a judgment that had been orally pronounced or signed but not yet formally rendered. Here there was a timely notice of appeal addressed to a final judgment that had been rendered but which did not include an adjudication of the issues involved in the litigation in which Norm Burg was a party. That litigation had not been concluded. The situations are entirely different. Williams is not authority for holding that a notice of appeal addressed to one final judgment can be effective as a notice of appeal directed to a subsequently rendered, separate final judgment adjudicating a different cause of action affecting a different party.

Petitioner correctly argues that respondent's notice of appeal could not obtain appellate review of the jury's verdict and judicial actions in connection therewith, pertaining to the common-law indemnity claim, because the first final judgment did not dispose of the latter matter. Jury verdicts are not appealable. See, e.g., Menfi v. Exxon Co., 433 So.2d 1327 (Fla. 3d DCA...