Opinion
No. 79-2090.
June 17, 1980. Rehearing Denied July 11, 1980.
Appeal from the Circuit Court, Dade County, Arden M. Siegendorf, J.
Richard B. Bergstresser, Miami, for appellant.
Tod Aronovitz, Miami, for appellee.
Before BARKDULL, HUBBART and SCHWARTZ, JJ.
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.1st 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 hold 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.
I would not dismiss the appeal. Since the order specified in the notice of appeal denied the appellant's timely motion for rehearing, and the appeal was obviously intended to reach the merits of the final judgment, I believe that we should and are required by the applicable authorities to disregard the technical error and to treat the notice as one properly directed to that judgment. 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, 232 So.2d 421 (Fla.3d DCA 1970).
Moreover, I detect no basis for the conclusion that the appellee was in any way misled or otherwise prejudiced by the mistaken designation. She has evinced no intention to cross-appeal any adverse ruling below, and was not in any way prevented from doing so if she wished. Most important, the appellee has not even filed an answer brief in response to the brief of appellant, which claims error only in the final judgment. Under these circumstances, I believe the cited cases directly control.