Opinion
No. 88-02610.
April 26, 1989.
Appeal from the Circuit Court, Lee County, Thomas S. Reese, J.
Michael R.N. McDonnell of McDonnell Trial Lawyers, Naples, for appellant.
James G. Decker of Decker and Smith, P.A., Ft. Myers, for appellee Southwest Florida Regional Medical Center.
Linda Brooks Robinson of Robinson, Robinson Fogleman, P.A., Sarasota, for appellee William Bess, M.D.
ON MOTION TO DISMISS AS TO APPELLEE SOUTHWEST FLORIDA REGIONAL MEDICAL CENTER
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 appellee 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.