SUN BANK OF GAINESVILLE, APPELLANT,
v.
O'STEEN BROTHERS, INC., APPELLEE/CROSS-APPELLANT, V. FLORIDA BOARD OF REGENTS, CROSS-APPELLEE
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O'Steen Brothers filed suit against Sun Bank and the Florida Board of Regents, winning against the Bank but losing against the Board in a single summary judgment. The First District Court of Appeal addressed whether O'Steen could file a timely cross-appeal to the Bank's appeal despite missing the 30-day deadline to appeal the adverse Board judgment, certifying to the Florida Supreme Court the jurisdictional question of whether a cross-appeal is proper when a single final order addresses multiple claims.
A cross-appeal may be proper and timely when a single final judgment is entered disposing of multiple claims, and the plaintiff files a cross-appeal within the appellate period after the losing defendant's notice of appeal invokes appellate jurisdiction, distinguishing cases involving two separate judgments.
[1] A notice of cross-appeal is timely when filed within the time prescribed by rule 9.110(g), Florida Rules of Appellate Procedure, to review an unfavorable ruling within a…
[2] When a single final order disposes of claims against multiple defendants, a plaintiff may invoke appellate jurisdiction to review an unfavorable ruling by filing a timely…
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Join FLexlaw to unlock all legal intelligence“We agree that Breakstone and Webb appear to be distinguishable because both involved two separate judgments, whereas here only a single judgment was entered disposing of two separate claims.”
Establishes the court's distinction between cases involving multiple separate judgments and a single judgment addressing multiple claims.
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Join FLexlaw to unlock all legal intelligenceO'Steen Brothers brought an action against Sun Bank of Gainesville and the Florida Board of Regents. On October 1, 1993, the circuit court entered a s…
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PER CURIAM.
O’Steen Brothers, Inc. (O’Steen), brought an action in circuit court naming as defendants the Florida Board of Regents (BOR) and Sun Bank of Gainesville (Bank). On October 1, 1993, the court rendered a summary final judgment in favor of O’Steen on its claim against the Bank, but against O’Steen on its claim against the BOR. The Bank filed a notice of appeal on October 27, 1993; and O’Steen filed a “Notice of Cross-Appeal,” seeking review of the adverse ruling on its claim against the BOR, on November 4, 1993.
The BOR has moved to dismiss the cross-appeal on the ground that this court lacks jurisdiction. According to the BOR, the summary judgment actually constituted two separate judgments — one in favor of O’Steen and against the Bank, and the other against O’Steen and in favor of the BOR. Therefore, O’Steen’s failure to file a notice of appeal seeking review of the judgment against it and in favor of the BOR within thirty days of rendition of the summary judgment deprives this court of jurisdiction to review the propriety of that adverse judgment. In support of its motion, the BOR relies principally upon Breakstone v. Baron’s of Surfside, Inc., 528 So. 2d 437 (Fla. 3d DCA 1988), and Webb General Contracting, Inc. v. PDM Hydrostorage, Inc., 397 So. 2d 1058 (Fla. 3d DCA 1981).
O’Steen responds that Breakstone and Webb are distinguishable because both involved two separate judgments, whereas the present case involves only a single judgment which addresses two separate claims. According to O’Steen, because the notice of appeal filed by the Bank was clearly timely, this court’s jurisdiction was invoked at that time, and its “Notice of Cross-Appeal” was proper and timely pursuant to rule 9.110(g), Florida Rules of Appellate Procedure.
We agree that Breakstone and Webb appear to be distinguishable because both involved two separate judgments, whereas here only a single judgment was entered disposing of two separate claims. Although our research has failed to discover any prior decision directly on point, we believe that because only a single judgment is at issue here, O’Steen’s position is correct. However, we certify to the supreme court the following, which we believe to be a question of great public importance:
WHEN A SINGLE FINAL ORDER HAS BEEN ENTERED, FAVORABLE TO THE PLAINTIFF . ON A CLAIM AGAINST ONE DEFENDANT BUT UNFAVORABLE ON A CLAIM AGAINST ANOTHER DEFENDANT, MAY THE PLAINTIFF INVOKE APPELLATE JURISDICTION TO REVIEW THE UNFAVORABLE RULING BY FILING A TIMELY NOTICE OF CROSS-APPEAL TO AN APPEAL FILED BY THE LOSING DEFENDANT, EVEN IF THE NOTICE OF CROSS-APPEAL IS NOT FILED WITHIN THIRTY DAYS OF RENDITION OF THE ORDER?
The motion to dismiss is DENIED.
ZEHMER, C.J., and JOANOS and WEBSTER, JJ., concur.
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Citator
Cited By
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Florida Windstorm Underwriting v. Anil Gajwani, 934 So. 2d 501 (Fla. 3d DCA 2005)…n inherent part of the order or orders which are properly under review by the main appeal.... Id. at 439. Following our decisions in Webb and Breakstone, the First District Court of Appeal decided Sun Bank of Gainesville v. O’Steen Brothers, Inc., 634 So. 2d 262 (Fla. 1st DCA 1994). That case involved an action against Sun Bank and the Florida Board of Regents. The trial court entered a single final summary judgment in favor of the plaintiff against Sun Bank and in favor of the Board of Regents against the…
Authorities Cited
- Webb Gen. Contracting, Inc. v. PDM Hydrostorage, Inc., 397 So. 2d 1058 (Fla. 3d DCA 1981)
- Breakstone v. Baron's OF Surfside, Inc., 528 So. 2d 437 (Fla. 3d DCA 1988)