Opinion
No. 3D12–200.
02-05-2014
Matthew PAKONIS, Appellant, v. Scott CLARK, et al., Appellees.
Law Offices of Mark A. Dienstag, LLC, and Mark A. Dienstag, Miami, for appellant. Sutton Law Group, P.A., and John R. Sutton, for appellees.
Law Offices of Mark A. Dienstag, LLC, and Mark A. Dienstag, Miami, for appellant.
Sutton Law Group, P.A., and John R. Sutton, for appellees.
ON MOTION TO DISMISS
LOGUE, J.
This matter comes before us on a motion to dismiss the instant appeal as to the following appellees: Darelynn Prejean– Graves, Barry Lee, and Sea Level Marine, LLC. We grant the motion to dismiss as to Sea Level Marine because the notice of appeal was filed more than thirty days after rendition of the final summary judgment entered in favor of Sea Level Marine. Fla. R. App. P. 9.110(b). But we conclude that the notice of appeal of the final judgment was sufficient to include the order directing a verdict for Prejean–Graves and Lee under rule 9.110. The notice of appeal was filed within thirty days of the order directing the verdict. The notice names Prejean–Graves and Lee in the caption. The final judgment attached to the notice mentions that both of these appellees were granted a directed verdict in their favor and grants all third party defendants (including Prejean–Graves and Lee) costs against appellant, Matthew Pakonis.
In these circumstances, any defect in failing to expressly name Prejean–Graves and Lee as appellees in the notice of appeal or the failure to attach the directed verdict order to the notice should be treated as non-jurisdictional. As stated in the comments to the governing rule, “[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.” Fla. R. App. P. 9.110(d), comm. notes (1977 amend.); see also Westfield Ins. Co. v. Sloan, 671 So.2d 881 (Fla. 5th DCA 1996) (allowing a party to be added to the notice of appeal absent prejudice to the opposing party). Accordingly, appellant Pakonis is ordered to file an amended initial brief as to appellees Scott Clark, Prejean–Graves, and Lee, only, within twenty days of the date of this opinion.
ROTHENBERG, J., concurs.
SHEPHERD, C.J., dissenting.
I agree that the motion to dismiss must be granted as to Sea Level Marine. However, I would grant it as to Darelynn Prejean–Graves and Barry Lee as well. The Notice of Appeal filed by Appellant, Matthew Pakonis, in this case reads as follows:
NOTICE IS GIVEN that the Defendant/Counter Plaintiff and Third Party Plaintiff, Matthew Pakonis appeals to the Third District Court of Appeal that final Judgment rendered in this cause on December 22, 2011.
The notice provides no clue as to the identity of the appellee. See Fla. R. App. P. 9.110(d) (requiring the notice of appeal to “contain ... the name and designation of at least 1 party on each side”).
The final judgment in this case, rendered December 22, 2011, and timely appealed to this court, states, in pertinent part:
[T]he jury having rendered a general verdict for Counter–Defendant/Third–Party Defendant Scott Clark, ...and having provided answer to the questions consistent with this verdict, this Court hereby enters Final Judgment on all claims.
Prior to sending the case to the jury, the court entered a directed verdict in favor of Third–Party Defendants Barry V. Lee and Darelynn L. Prejean–Graves (“Third–Party Defendants”).
Accordingly, it is hereby ORDERED and ADJUDGED that:
Judgment is hereby entered that Counter–Plaintiffs Matthew Pakonis as an individual and Matthew Pakonis on behalf of Southern Vision Contracting, Inc. (“Counter–Plaintiffs”) take nothing and that Scott Clark and all Third–Party Defendants recover from Counter–Plaintiffs their costs in this action.
The Court retains jurisdiction to determine an award of costs and to enter such further relief as is necessary and proper.
DONE and SIGNED in Chambers at Miami, Florida this 21 day of December, 2011.
/s/ Lester Langer Circuit Court Judge
The following language appears at the foot of the first page of the final judgment:
The final judgment is a final judgment rendered against counter-plaintiff/third-party plaintiff Matthew Pakonis on a jury verdict. The trial judge orally granted Darelynn Prejean–Graves' and Barry Lee's motion for directed verdict at the close of the plaintiff's case on December 14, 2011. I read the footnote as nothing more than an act of recognition of prior judicial action. This is confirmed in my mind by the fact that an “Order Directing Verdict” was signed by the trial judge and rendered by filing with the Clerk of the Court on December 31, 2011. While in some circumstances such an order might be a non-final, non-appealable order, see Schutzer v. City of Miami, 99 So.2d 729 (Fla. 3d DCA 1958), the order in this case not only memorializes the oral pronouncement on December 14, 2011, but in the next sentence states expressly that “[a]ll claims against Barry Lee and Prejean Graves are dismissed with prejudice and Matthew Pakonis shall go hence without day.” (emphasis added). As experienced appellate counsel well know, such language constitutes an unequivocal declaration of finality upon which timely action must be taken in order to secure appellate consideration. Diaz v. Metro–Dade Police Dep't, 557 So.2d 608, 609 (Fla. 3d DCA 1990); Gries Inv. Co. v. Chelton, 388 So.2d 1281, 1282 (Fla. 3d DCA 1980); see also Raymond v. Caldwell Banker Residential Real Estate, Inc., 848 So.2d 1160, 1161 (Fla. 4th DCA 2003); Allstate Ins. Co. v. Collier, 405 So.2d 311, 312 (Fla. 4th DCA 1981); Form 1.994, Fla. R. Civ. P.; see generally, 2 Fla. Prac., Appellate Practice § 23:2 (2014). The majority's failure to acknowledge the full force and effect of this order and afford it its due deprives Lee and Prejean–Graves of the comfort of finality to which litigants are lawfully entitled. Lauderdale Marine Ctr., Ltd. v. MYD Marine Distribs., Inc., 31 So.3d 256, 257 (Fla. 4th DCA 2010) (“[An appellate court] may review only proceedings occurring prior to the date of appellant's notice of appeal.”); Velickovich v. Ricci, 391 So.2d 258, 260 (Fla. 4th DCA 1980) (“[A District Court of Appeal] cannot review judicial acts of a trial court taking place after the filing of a notice of appeal unless those judicial acts are themselves made the subject of a new notice of appeal or other appropriate appellate proceedings.”); Geraci v. Kozloski, 377 So.2d 811 (Fla. 4th DCA 1979); Fla. R.App. P. 9.110(h) (“The Court may review any ruling or matter occurring before filing of the notice.”); see generally, 2 Fla. Prac., Appellate Practice § 1:7 (2014).
I would grant the motion to dismiss in its entirety.