Bennett v. Zager

District Court of Appeal of Florida

Bennett v. Zager

387 So. 2d 382, 1980 Fla. App. LEXIS 17522

CourtDistrict Court of Appeal of Florida

DecidedJune 17, 1980

DocketNo. 79-2090

StatusPublished

Cited by1 cases

This text of 387 So. 2d 382 (Bennett v. Zager) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bennett v. Zager, 387 So. 2d 382, 1980 Fla. App. LEXIS 17522 (Fla. Ct. App. 1980).

Pincite

Opinions

BARKDULL, Judge.

The trial court entered a final judgment in this cause on July 20, 1979. The appellant timely filed a petition for rehearing which, in effect, was denied on October 2, 1979 except for the correction of a citation.

Thereafter, the appellant took a notice of appeal describing only the October 2, 1979 order. The notice of appeal did not put the appellee on notice that the appellant sought review of anything other than the October 2 order. It wasn’t until the appellant filed her brief that the appellee was put on notice that the appellant’s real complaint was to the July 20 final judgment. Under the new rules there were no assignments of error and the entire record was sent up upon the filing of the notice. The appellee did not respond to the point raised in appellant’s brief. The appeal is subject to dismissal upon the following authorities: Mickler v. Smith, 111 So.2d 457 (Fla.2d DCA 1959); Kaemmerlen v. Shannon, 119 So.2d 315 (Fla.2d DCA 1960); Quackenbush v. Town of Palm Beach, 151 So.2d 348 (Fla.2d DCA 1963); Frank v. Amara, 235 So.2d 537 (Fla.lst DCA 1970). We have not overlooked, State v. Allen, 196 So.2d 745 (Fla.1967), as distinguished by the Second District Court of Appeal in Bay Area News v. Poe, 364 So.2d 830 (Fla.2d DCA 1978).

In the instant case, the appellee was clearly mislead by the notice of appeal, the time expired from which any cross-appeal could have been taken, and there were rulings by the trial court which may have warranted a cross-appeal if the appellee had been put on notice of an appeal from the final judgment. The appellee did not respond to the point in the brief, and to now bold that she was not prejudiced would be wrong. The appellate rules cast upon the appellant the burden of appropriately identifying the order to be reviewed. See: Florida Appellate Rule 9.110(d). The only exception to this would be the circumstances outlined in State v. Allen, supra, which circumstances are not present in the instant case.

Therefore, the appeal in this cause be and the same is hereby dismissed.

Free access — add to your briefcase to read the full text and ask questions with AI

BARKDULL, Judge.

The trial court entered a final judgment in this cause on July 20, 1979. The appellant timely filed a petition for rehearing which, in effect, was denied on October 2, 1979 except for the correction of a citation.

Thereafter, the appellant took a notice of appeal describing only the October 2, 1979 order. The notice of appeal did not put the appellee on notice that the appellant sought review of anything other than the October 2 order. It wasn’t until the appellant filed her brief that the appellee was put on notice that the appellant’s real complaint was to the July 20 final judgment. Under the new rules there were no assignments of error and the entire record was sent up upon the filing of the notice. The appellee did not respond to the point raised in appellant’s brief. The appeal is subject to dismissal upon the following authorities: Mickler v. Smith, 111 So.2d 457 (Fla.2d DCA 1959); Kaemmerlen v. Shannon, 119 So.2d 315 (Fla.2d DCA 1960); Quackenbush v. Town of Palm Beach, 151 So.2d 348 (Fla.2d DCA 1963); Frank v. Amara, 235 So.2d 537 (Fla.lst DCA 1970). We have not overlooked, State v. Allen, 196 So.2d 745 (Fla.1967), as distinguished by the Second District Court of Appeal in Bay Area News v. Poe, 364 So.2d 830 (Fla.2d DCA 1978).

In the instant case, the appellee was clearly mislead by the notice of appeal, the time expired from which any cross-appeal could have been taken, and there were rulings by the trial court which may have warranted a cross-appeal if the appellee had been put on notice of an appeal from the final judgment. The appellee did not respond to the point in the brief, and to now bold that she was not prejudiced would be wrong. The appellate rules cast upon the appellant the burden of appropriately identifying the order to be reviewed. See: Florida Appellate Rule 9.110(d). The only exception to this would be the circumstances outlined in State v. Allen, supra, which circumstances are not present in the instant case.

Therefore, the appeal in this cause be and the same is hereby dismissed.

Cite This Page — Counsel Stack

Bluebook (online)

387 So. 2d 382, 1980 Fla. App. LEXIS 17522, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bennett-v-zager-fladistctapp-1980.

Opinions

Related

Cite This Page — Counsel Stack