Rhoades v. Southwest Florida Regional Medical Center

542 So. 2d 1042, 14 Fla. L. Weekly 1068, 1989 Fla. App. LEXIS 2275, 1989 WL 52609

• Court: District Court of Appeal of Florida
• Decided: April 26, 1989
• Docket: No. 88-02610
• Status: Published

Opinion

ON MOTION TO DISMISS AS TO AP-PELLEE SOUTHWEST FLORIDA REGIONAL MEDICAL CENTER

PER CURIAM.

Appellee Southwest Florida Regional Medical Center moves to be dismissed from this appeal on the ground that it was not included in the original notice of appeal and that an amended notice of appeal including Southwest was not sufficient to bring it into the appeal. The relevant chronology is as follows:

1. Order dismissing complaint against certain other defendants — August 30, 1988

2. Notice of Appeal — September 7, 1988

3. Order dismissing complaint against defendant Southwest and certain other defendants not included in the first order — October 28, 1988

4. Amended notice of Appeal directed to October 28, 1988 order — November 18, 1988

In Cobb v. St. Joseph’s Hospital, et al., Case No. 88-02739 (Fla. 2d DCA March 29,1989), this court held that a notice of appeal may not be amended to include a separate judgment against a different defendant by filing an amended notice of appeal after the time for filing a notice of appeal from that judgment had expired. In the instant case, when the amended notice of appeal was filed, the time for filing a notice of appeal from the new judgment had not expired. Neither do we find Norm Burg Construction v. Jupiter Inlet Corp., 514 So.2d 1102 (Fla.1987) applicable here because there was no amended notice of appeal referring to the new judgment in that case.

Clearly, appellant could have filed a separate notice of appeal from the October 28, 1988 order at the time the amended notice of appeal was filed. Under these circumstances, no one was misled that the judgment against the medical center became final, and we perceive no prejudice to appel-lee Southwest. In short, we find that the defect was not prejudicial or jurisdictional. However, appellant does not come within the purview of Rule 9.110(h), Florida Rules of Appellate Procedure, which provides that “(m)ultiple final orders may be reviewed by a single notice, if the notice is timely filed as to each such order.”

Accordingly, we treat the amended notice of appeal as a separate notice. Appellant shall forthwith pay the appropriate filing fees to the clerks of the circuit court and of this court. Both appeals will proceed in the above styled case already docketed as if consolidated. The motion to dismiss is denied.

RYDER, A.C.J., and SCHOONOVER and ALTENBERND, JJ., concur.