Puga v. Suave Shoe Corp.

Decision Date30 April 1981
Docket NumberNo. 81-187,81-187
Citation417 So.2d 678
PartiesRobustiano PUGA and Medmold, Inc., Appellants, v. SUAVE SHOE CORP., Appellee.
CourtFlorida District Court of Appeals

Fine, Jacobson, Block, Klein, Colan & Simon and Joseph H. Serota and Stuart L. Simon, Miami, for appellants.

Greenberg, Traurig, Askew, Hoffman, Lipoff, Quentel & Wolff and David L. Ross and Kendall B. Coffey, Miami, for appellee.


Appeal dismissed.




By a two-to-one majority, a panel of this court granted, without written opinion, the appellee Suave Shoe Corporation's motion to dismiss this appeal solely because the notice of appeal stated that the appellants sought review of the order denying their post-trial motions, rather than the final judgments entered against them. Under Fla.R.App.P. 9.330(a), we have granted the appellants' motion for rehearing en banc because this conclusion creates a lack of uniformity with this court's decision in F. A. Chastain Construction, Inc. v. Stanford, 232 So.2d 421 (Fla. 3d DCA 1970). Upon that consideration, we hold that the motion to dismiss should be denied.

The appellants Puga and Medmold, Inc. were defendants 1 below in an action for damages brought against them by Suave Shoe. 2 The case was tried to a jury which, on November 10, 1980, returned verdicts against Puga and Medmold of $250,000 compensatory and $25,000 punitive damages each. The defendants' timely-filed and appropriate motions for directed verdict and new trial were denied on December 30, 1980. On January 19, 1981, final judgments were entered in Suave's favor on the verdicts. Within the 30-day appeal period thereafter, on January 29, 1981, Puga and Medmold filed the notice of appeal on which this present controversy turns. It stated:

NOTICE IS HEREBY GIVEN that the Defendants, ROBUSTIANO PUGA and MEDMOLD, INC. seek to invoke the non-discretionary jurisdiction of the District Court of Appeal, Third District of Florida, for the review of the Order of this Court rendered on December 30, 1980 denying the Defendants' Motion for a New Trial and Renewed Motion for Directed Verdict. The nature of this Order is a final Order in favor of the Plaintiff and against the Defendants.

All parties to this action are called upon to take notice of the entry of this appeal.

Suave then filed the motion to dismiss which is now before us. In support of that motion, the appellee correctly contends that the order denying the post-trial motions which was specifically stated in the notice is both non-final and non-appealable. Fla.R.App.P. 9.130(a)(4); e.g., Whigam v. Bornstein, 118 So.2d 252 (Fla. 3d DCA 1960). It is incorrect, however, in its claim that the obvious inadvertence in the notice's reference to the wrong order should result in its motion being granted. To the contrary, in accordance with the welcome policy that appellate like other judicial proceedings should be determined on their merits, instead of upon irrelevant technicalities, our supreme court has determined--by both its decisions and its enactment of the governing rules of appellate procedure--that non-jurisdictional 3 and non-prejudicial defects in the notice or other steps in the appellate process are not grounds for dismissal. E.g., Seaboard Air Line R. Co. v. Holt, 80 So.2d 354 (Fla.1955). Thus, the Advisory Committee and Court's Commentary states that Fla.R.App.P. 9.040(h)

is intended to implement the decision in Williams v. State, 324 So.2d 74 (Fla.1975), where it was held that only the timely filing of the notice of appeal is jurisdictional.... [e.s.]

Similarly, the commentary on Fla.R.App.P. 9.110(d), which deals with the form of the notice of appeal, points out that

[t]he Advisory Committee intended that defects in the notice would not be jurisdictional or grounds for disposition unless the complaining party was substantially prejudiced.

Consistent with this approach, it has been repeatedly held on these very facts that a notice which improperly specifies a non-appealable order denying post-trial motions is to be treated as correctly directed to the reviewable final judgment. DeLoache v. DeLoache, 274 So.2d 883 (Fla.1973); Eggers v. Narron, 238 So.2d 72 (Fla.1970); State ex rel. Poe v. Allen, 196 So.2d 745 (Fla.1967); Greyhound Corp. v. Carswell, 181 So.2d 638 (Fla.1966); F. A. Chastain Construction, Inc. v. Stanford, supra; see Bay Area News, Inc. v. Poe, 364 So.2d 830 (Fla. 2d DCA 1978), cert. denied, 373 So.2d 456 (Fla.1979); contra, Bennett v. Zager, 387 So.2d 382 (Fla. 3d DCA 1980), review denied, 392 So.2d 1371 (Fla.1980). 4 These cases are controlling and require denial of the motion to dismiss.

Sauve attempts to distinguish most of these cases, specifically Poe, Greyhound, DeLoache, Eggers and Chastain, on the ground that in each of them the court looked to references in other appellate papers, usually the then-existing assignments of error and directions to the clerk, to deduce an "intent" to secure review of the final judgment. For a variety of reasons, this assertion is not well-taken.

First, the supposedly-required evidence of such an intent may be found in this case on the face of the notice itself which, albeit erroneously, states that the order appealed from is an appealable "final order." See Seaboard Air Line R. Co. v. Holt, supra. Moreover, the intent to appeal from the final judgments has now been unequivocally expressed in the appellants' response to the motion to dismiss, 5 including a specific application under Fla.R.App.P. 9.040(d) to amend the notice to that effect. 6 In addition, we note that, with the abolition of assignments and directions by the new rules, the first extra-notice indication of the issues the appellants seek to raise would ordinarily not appear until the filing of their brief. 7 Since it is certain that this "appellate paper" will show their desire to review and reverse the final judgments, the appellee's position may be rejected on this basis alone. 8

In the larger, more fundamental jurisdictional sense, however, it is doubtful that any indication beyond the face of the notice as to the particular order in question is necessary to the viability of the appeal. 9 This is because the pertinent issue is not whether the appellants "intended" to designate the correct order in the notice of appeal; 10 but rather, as stated in Poe, supra, at 196 So.2d 746, whether there is "a clear intent to prosecute an effective appeal. [e.s.]" Unless the appellants had no desire for appellate review of the substantial judgments against them and wished to throw away their filing fee, it is plain on the face of it that they possessed this intent. Under the present circumstances, in which the only appealable orders are the existing final judgments--and the ones stated in the notice are not appealable at all--the only way in which the intent to appeal, that is, to secure appellate review, may be effectuated is to treat the notice as referring to those judgments. 11 Put somewhat differently, so long as a notice is (a) timely filed in the correct court--thus satisfying the only discernible jurisdictional prerequisites, (b) has sufficient information to identify the appealing and opposing parties and (c) states a desire to appeal, 12 it must be deemed directed to the reviewable order, so that that desire may be satisfied. 13 This view is in full accord with the essential basis of the supreme court's decision in Poe that

[t]he significant factors fully delineated in the earlier cited opinions and present in the case sub judice are proper identification of the litigation in the notice, a clear intent to prosecute an effective appeal, specification of errors reviewable only upon appeal from the final judgment, presentation of a record sustaining such an appeal, and the absence of any record basis for genuine prejudice as a result of the defective notice....

This rule, as heretofore noted, accords with the nature of the constitutionally guaranteed right of appeal under Article V, Sec. 5(3), Fla.Const., F.S.A., and is supported by well-reasoned cases construing appellate laws and procedures in other jurisdictions:

'Where the appeal is erroneously taken from the order denying the motion, rather than from the judgment, the sound course undoubtedly is to treat this technical error as harmless, and to consider the appeal as if it were from the judgment. * * * '

subject to the qualification that a party cannot by such designations alter the appeal time from the final judgment or otherwise prejudice accrued rights of his adversary, the decided tendency appears to be to adopt 'the more liberal rule that, where it is obvious that the overriding intent was effectively to appeal, we are justified in treating the appeal as from the final judgment.' [ 14

196 So.2d 746.

Finally, as in each of the cited cases, it is apparent that the appellee has suffered no cognizable prejudice whatever as a result of the error in the notice of appeal. The only argument it even asserts in this respect is, as we understand it, that it did not cross-appeal adverse rulings below because of its belief that the notice was ineffective. 15 But there is no reason why it could not have filed a protective cross-appeal while still, and not inconsistently, maintaining its position that the primary appeal should be dismissed. More significantly, it has not even been harmed by the failure to take that course. Because the time for filing a notice of cross-appeal is not jurisdictional, it is free to do so even now. City of Hialeah v. Martinez, 402 So.2d 602, 603, n.4 (Fla. 3d DCA 1981), and cases cited.

For these reasons, the panel order of dismissal is vacated and the motion to dismiss the appeal is denied. 16

Motion to dismiss denied.

HUBBART, Chief Judge (concurri...

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