HomeMy WebLinkAboutR-93-0351a
J—3— 0
t.. 27/
93
wiTH AT A �E S,DISMISSING
b
z L
''' 'PE 3 ' E ISIO t� ' THE EG�i�I�t
BOkRT-.. . : SPECIAL:iCEPTICN'Rt7i
R CE S 11000.; AS MENDED r THE ZONING
'
ORDINANCt ' OF THE CITY OF, MIAMI r FL{JRIUA,
�7�+
��tt ��wt�4�.y �j ^}���'yy�+�y�p� PARKING
A�T:� Ctt �7 i` C N ' r , +��i N i 7i dl ��14.T
:~
FACILITIES FOR CONTIGUOUS USES, TO PERMIT A
3INT -PARKING EAMITY INCLUDING ACCESS' 'MAYS
FOR CONTIGUOUS U5 USE AS PROPOSED t SUBJECT TO
3 ..:
THE Cs N � Iti1+ S SET F0E`PN .CAN EXHIBIT „A„ FOR
3° 5
THE PROPERTY LOCATED�� 3�i 4 � �-3 �5 J ���
' y
AVENUE-., MIAMj d -� FLORIDA � �'iQEE `PARTICULARLY'
`
DESCRIBEDZO ED STD-� COCONUT GROVE
CENTCOMMERCIAL DISTRICT; SAID SPECIAL
EXCEPTION HAVING A. TIME LIMITATION OF TWELVE
MONTHS IN WHICH A BUILDING PERMIT MUST BE
OBTAINED.
.rt #'*'.Y ,fi"S''';a'Is+". ff1•acri:f' eFw v�v�n= ma .�,. —
# I r a { ! Motion
rnd� tt �r of epee. nc c3.
th
t t � A 1e 20, Section 002 o;n�_nc�
Ordifta noe df the , jt o .XJaMit Fl`brida, as amended? and 2) that
s,
I Mck�ieyd not have s tand
ing to bring the appeal. since did
T
nit the Zoniric oard to object r and
{
, MgAS, "the 'Alt CC3mmisslori after .care �2 . consideration (der t3.t3n of
this matter, and after hearing argument presented by counsel fO
rhley andandOak
, wishes to dismiss the appeal
. 1 main the decision of the _Zoning Board to grant the Special
F
97cc+c pt on
t
NOW T�IEi�EPORE, BE IT ` RESOLVED B'Y THE COMMISSION OFTHE �3TX
LORI D ►
Section , 1. The recitals and findings contained ` in the
Zn,=ire"aeo
this 'Resolution are hereby adopted by reference
iV
t et and inc�rpor ►ted herein ' as if f�x� l� set forth in �h�s
y
yPI
ec+t'Ion r
`
} �+c y
on - 2 The Mx. xitix City oiiilt1�,85.1,on , fliAdB that
.ect _
54
_
ro d +yak. eras uhatantially prejudiced since Mr. MC)I'?ley" s Notice-;
i
'
" eat. did not state specific reasons for the appeal and -'since
Ypp
Mobley did not appear before ' the Zoning Board to expressh`is
'
0 3. act 0, y rand OTC had 'no . knatil�edg concerning the a, ai
'
�f} section 3
the ! atni City,
hereby f � nds that
commission,
s
.
' M hi did
n.ot have
standing
�
to appeal the Zoning Board's
I
7
d�s�a�
Mr Mobs ey
appear,before the Zon3»1+EBoa rC
y,
to expxes his
objection
Verbally
orin wr�t),�ig.
•�� 4"�
9
M
t
34
��3 d
-
I
1993.
PASSED I
,� ADOPTED +��_ w _
1�
xR L. R , R
r .
tO�i.
BY
' . T, CITY ATTOR14E Y
4 =
d a
ARPR 3VD AS TO FOB AND CORRECTNESS-
:
4
� 3>
a.k
S.
r �
S
r5 NO
Nis
k..r'
4 _ �
.. , 4
�-
_ .sF ,
, ,-,.
I
-
,
3
_ . :,._.
}�,,
I I � 11,111 ll�::f" �
I , , "
I
OO
$..
..,
_.
4r
L
.el
s
. .
. _
1,
.
_
t., . , :. . , .;
.
,
',
;. - �.
.
` -
" ' ,4
..
f I
tit .
�p. i ..
'
'
. t t
49x ,.
11
'.
-i��
i
f
�F
El�,,,��,�.,,—����,�i,�;-,�,.-.�,
AS cif
I
}
�ry
i} Y
)p�'I :: r
�'1g ..
"_�1
?
- z
_
s.' -
11 --
a of
Wt x
-
.�.!
�_ : ,
-
) ..ram
�
'
f:
,�
z
I
f1.
.. ,
�i��
� k -.
-'..
_jl
'
r
i as4 M
...
-I
. #r
" i j ,
..
M1t
a y
._- 71' 1 Y'
'
i 1 }
*a
t,%
I .; {
- in
t t -'
I
'
y 1-
f
if
Y
.1�
y
- -
1 A
f� i.
"4
�
p" dr!:, , t z"
�,�11
t pI. f' t`"''k
'y -
jm '- ,
i Iv f
y F#lG
f MGM t�
�i -
yy
rf+,
}
i i
9,.
- '�.,'0'�Y
.j 1
Ff: ..
4 F
fr
t�, ,, ,
' 'll, y 1 f
a
+7f
yF
ia�' s;
` r
jq.
i
w.
.w r '.
Y
4
—
J y,1 +2
{
rt`4�
�'
-
s-rr
`�I I - s i
Fl ro t
a j.- t
i ft n iy
�*
i
"; kS � F;'';
%�1;
i>�
1 }�:
ti
y ' 1 .�
t - , �' d fz
L
4°"i 4r d
;
i
-
_ { f Z 'Y';
k , 5 n -?i �
.-I 3
'
1 }
}fyYn; f f '"
4..
s
1
79.Ytp(
t
t1'
t
l( Lp Tsi t - i
_
r
tk
t fai :ii
t +F f �,
p
-
Tf _
qi.
v i t,uM
_Y2i� f
pf'
'l
f `2 " 1 fn :'
xA..`h lr,.kr , .., .. , ... . -
-
... ,. _. . _ .. - .. ,
i Y,._ ( M I� d5; ,�..,"d
, .. .f.�, ,..er ....... A: z�% ,s!.. 1..,. x :.S }
HIM
{
op�.y�o a ?/�FY clad. Exception for 3043-3059 Grant avenue
Conditions rRNMMs LdW'
'
r
W4.Rs�e%
( REVISED
.f�
llLa. b 1
AT ZONING BOARD M]��"1*iNG OF 3/1 5/9) .
5
submittal of proof that allcu�.r+ent,ly required parkins will
�-_
+y. ; ...
be provided. f,or .while the.- proposed development.- '..is under
*,r i.iisi7 tJL. 'R.Yt,�.on r
P=
E
2)
submittal of letter from School Board approving use of their
�-
-
property for depicted _emo?rgency exit at rear of development,
-
�F3)
Re1ocatron of the depicted ticket house ( further north) so
that more cars can be aconmodated in the reservoir stacking
'
area an site (e,, g. approximately four (4) vehicles) vs. can
Grand A'6t�e
0.
4)
Restibmittal of site plan and survey drawings depicting all
_
J
existing:crosswalks and traffic signaling devices;
—
5)
Submittal of a. study including vehicular and pedestrian
g
counts for the peak hours e . , 10 to 11 ISM Fridayand
p ( g
`r
aturday evenings) for the Grand Ave. Primary pedestrian
Pathway, footsing on the Grand Ave » /Main Hwy/McFarlane
=-
1
F
intersection, and also with an analysis and recom nendations
-
regarding how the integrity of the Pedestrian Pathway sri.11 e
r
p.rotected and hog' the potential pedestrian/vehicular conflict
z
ai.nts Will, be minim -zed; such analysis shall. include. green
Y
light time availablefor pedestrians and vehicles ' crossing
brand Ave at the �rQject lcacation (the pedestrian, areas.
„p
i
p c f3 ca11 y in c esti.on, are the entrance and exi tw ays of the ;
1
..
propgsed parking structure and the existing crosswalk),;
-
i)
Resubmitta1 of all` floor- plan drawings depicting all pxc posed,
'pedestrian- and vehicular connections to the existing Cocowa lk
at each level' (drawings must also clarify wa.i
section/treatments abutting Cocowalk);
�_-
Y
7)
Reservati do of at le one cif the 'depicted park .rig p8 @s " at
ground" level. (be.hi.nd the new retail component) or,
-
truck and van deliveri es )' ;
x
8)
Reservation of the existing restaurant's required handicapped
-
F
spaces at ground level of the garage;
9)
Ingress and egress for the new parking garage, shall ba."
lunited to "right turns in" and "right turns ��t" o�ni.
furthermore, the.appl cant must agree to pay for any.requi.red
,k
signage or light signalizati.on to ensure this condition,•
3
10)
A minimum of three (3) traffic directors/guards (to be
x x
Located` at appropriate points onsite and in front " of the
development) during peak hours to ensure r6inimal
x
Bede tri.an/veh; cul.ar =conf licts
q
11)
A11 required public right-of-way dedications shall be made.
�-
prior to issuance of Certificate of Occupancy,
2)
the Planning, Building and Zoning Department; furthermore."
reserves the right to a cane -year review o , .the dcet d, "
project in order to assess its impact the arean d`
`
determ.in6 if additional' ux foreseen conditida no ad to160,
considered, particularly pertaining to the placlai6ent of the
,`-
ticket booth some 8 0, feet north of its present location.
=_
j
M,341
/fps/(M _31,
-. .-. ,
l
T�`-
L r
t
i
M t y
RE THE CITY OF MXAM
mod`.
°� OX yyryy��
, W � PLO AIDA
1
�
� � � •
key.. � '�
� '� a
t
lon-
S
V Sa
#YZ
i
4
a
MATHS 1�I rF
�
t
`
P
�' C� �
�1iI�i.►
h
ped Payers G WD €OAK
_4Ip
s.
Jy�
Y
i d0r' i � i hereby f�.�.: � .can 0
91' �e �.i i t. 6ijad iFtaLros 4i s Arollo s:
or a
01
.a
a
,
c 1
ft �
'$4 Y{5:=,, .a,. ., .. 3rll .... .tea-'�S. a..�.,,� ��s... ^•YY 1!► �, Nir,W' �,yM-�iYa ..e idl. ;� �`'�- ''f,t y. Y`'
rraru wr r. w�ar� .�.�. rr n a
e r _ �
,. +•.ia,-.., �1 �r
y
WE
tea=-
4. Neither "PgLLANT nor his attorney voiced any
ob ectio t , on APPELLM-Tts behalf by appearing before the Zoning
%turd at the . arch 15 1993 h6ar .nq
AM
Stient31Article 2tt of the Zoning Ordinance
e City � iamb. a �' ��`� � d as aided ("Zoning ordinanceft) r a.. -provides thats
a
Dec4sions of the zoning board, whether
acting
on matters of appeal from the zoning i
ad ninistrator or director of the department
of,planning, building and zoning or acting
in its original Jurisdiction can matters of -
'
special elloeptions or variances, �try n
finalxn1 within fifteen l
�� —
calendar days of the cute o� the board
y
decis:ion�. ., r e m _+t ;
^
yy�µy� yA� 'j(��.
nLaeX herein
gut .. (enpha$is added)
6. Section 2002., of the Zoning ordinance defines ,tie
y, jI. j.� y,t �y - j g� �y
vrocedure thatst D✓e oi.lo ted ;'"lt order {rQ .�. M O i t�e. anneal'.
Section., "2002 provides. �.
..
{boArA
_., ..
$_
deeigion by. the city -. Commission. rgh-4.. e
Ce or went - ig t+ad by
_
the city manager gt-Ating thS aw f.
payment of any, required fee request
-
`'
may be . filed by the applicant or etitioner
r r
or by:,any percint y or 'several,-
`
aggr .eyed by- the., action of the' zoning board,�
hz
or by any officer, department,, board,.
LL
cci.se.ean, or bure�a,sx, of`
lemphasis added).
F
7 0 PELLANT' letter of appeal provides;
is
r
,Y
x
; ,
.
respectful! re est that the Bc�arc�-I s
p y
-
Pfle;,.
approves of the Special Exceotion for
the
appealed and heard by
- abo�re/yproperty;y;�y^�lyb�
the
r-
t
p
City of ' i{"'ii lisV'.idiiii issio
t �
r -
2
e
a The appeal filed .�i.�P is clearly deficient ,._
t.. _ _
... it fails to -state
O he sp'eoific reasons for such appealto -
g.
u i s o t ti are i ,reason or the appeal $
•
Thi'city
Commiasionlack jurisdiction to hear the
r $
of
}
peal a on, "lay
the no
WAS appeal*'
i
r'
t 1 . la lure to specify , the reason for the
appeal �s�txhs tan ialiy ors= odic es by failing o pro ris
B OAX with notioe or knowledge
�� to the grounds and reasons
dv
1 df
for the appeal
,.. G p i.so pr�ucced si�►o+wPpELi° d.d
not appear before the Zoning Board to voice his ObJections.
12. The Florida Supreme court has held that notices of �=
Aw-
appeal. must be filed, in substantial. oom�alia�aos;: with� le
,�-' ' m • jjj102
e noticenageoi i g the
content. of
a r d 129 (Fla. 1958).
130 Defects eots in - a native appeal are cans 3 deed
.,of,
Ur f moots and +rounds for dismissal. if the comp na.nt�
x.- -
.Q.
}}��++yy��.yam y..
�yq
y J fiw ej Mi1La:��.ied o Y �.vb t idid i i�d ��✓ d ,.
r
r-
2s
,iaQ,#. ,
i—
_
(,Flai Ist =A 1990)
14 APp8L � cannot amend his notice of apg�e�l after
.
fist �t Jr lima
the expiration date ' to � the appeal.. e
1
Bail 80 So.2d 354 (Fla. Z�S�� (en bane).
l
M1 x
t
e
1. E ' '' s appeal. should also he dismissed for hid
fy—
r1_
VP
1
failu to appear at ,h.e Zow ng Bo��d. �I'�d voice his- o��eC���.o In,
'S
2o . 2
t c
s
r
24A 1977) X t t ourt held th4t a • paw 1i igant mUOt
,—
dyF
t
aft Baring in �9r4q to pA, er. mod "
-.
•i ]
l -
��a,..z'�r
r
a
"t-
5
�.
^
ps rf at the right + appee i 11 t1tr �t
4 try. . t natitutes a departure ture from the
i
a fn ent ► . of law. APPE AM I s failure
A ► tale ao� d does not allOhi to appea . t*
= a >s3n#
0A K' ' requests sty otutis�s�i�n to
fs a pen ���rsdi-Amdiction and a departure from
rc ar .
,r the- o
as ential fundam6ntal require a ta of law.
,.. ptes�pes� ull siubinitted
,
GR ENB:RG a 'I'RAURIGr d iiOFF A a
ht
Lucia A. Dougherty.. .Eb.q.
Adrienne ' r.+ : ner Pardo, , Esq.
for Appellee
_Attorneys
Grand Oak Limited Partnership
}+x trt
1221 Bricke11 Avenue
r
Miami Plorida. 33131
`
Telephone (305) , 570-0500
k
4
By:
C'IA A. DOUGHERTY
�
r
ur s
a
'yy
It
i
4
c
In L rim
the foregoing
--tUO:And 00t cOPY Of
T' Mpgjay CEgTIpy thtit 'A, t
Attorney for Appellant, 7600
t6iled toz John.' Pl- t h r 19
u te 304� I
and G. MirMaer.'
dami' Floridai 33143 iam
so sta 300 nupont Plaza Center,, 300
nt Citly Attorney
i,, Florida 33131 thi
'U
-Sirpdav e 00'.1evard Wayr Suite 300o MiaZ0
d' av of May,, 19.93.
Oki
, 1A
20!K'T
ARM
gi
VU
�i A
S-1 AN
�wk
-yid
OCONM
f�
� t
xtit
s
fu
li;
itia
ton Awwa
E opt
1093*
of 15
..
CA ' above, S
cit
of Miami coniftis
,
r
'
i O,tee
I
TATS vt CARROLL Fla.12-9
Cite as, Fla,
102 S,.zd 12s
prescribed by the roles. Florida Appellate
STATE at Florida, ex rot. DIAMOND BtFIX
, }., ;-�rb�°�� d; 31 F. .A.,, Su-
,� GENC`Y, It1� Rl�latiir, � i1 4
p1ea1e Court Rules, rule IZ
Hartaralelo ChArdes A. CARR LL, as Chloe
d. Courts l
Judirs, Hoporrable data ery Hortaa and
A court has no power to act in tl7e
HoItorablt "!"lllt an Posirsoo, as JudgO
"Cowl
absence cif Jurisdictional foundation for
the MOW OR, Aled i. Third DIs-
the exercise of the goer,
triof, state of Plorlda, Fleso"doaft
l�ulzreme +�oceut of Florida.
5. �drp i and Error 28(d}
Aprli ttt, IN&
Alleges fact that notice of appeal re -
suiting from a clerical misprision was er-
roneously filed in, the wrong court did not
t?riginal pxoceed%ttg n9 a x�rle
authorize the district court of appeal to
to: prohibit the respondeats its judges of
tie" jurisdiction of the appal in view
the distrect Cart of appeM fr0ni fairing
that the original filing of the notice of the
Jurisdiction,of an a l to matt ar .
�a
appeat in the tt'ial court is necessary to
The Supreme Gault, 'ThoraW, ., told
corxfer jurisdiction upon the appellate court..
that alleged fat that 110tice of appeal re-
Ii orida Appellate Rules, rule 3A sutras, a.,
"
xulthic from a clerical misprision was filed
d; 31 l~.5.A,. Supreme Court Mules, rule
.h. the cleric of district curt of aipp l
lid,
and fact that) citric overlooked fact that
------
notice vas exro neously filed in wrong court
r}
.
did not authorize: the district court of 'ap•
Fr+each & Skolnick, Miami, for relator.,
peal to tape ju4sdiCtion of the appeal.
Aronovitz, Aronovetz & Haverfield, Mi-
'rayer four rule dbsolute iu Prohibit'
ami, for respondents
THORNALO Justite.
t, Ap[l atod error 2)
f
By an original pr9ceeding here the vela.; .
Y i79 -
e tie filing
Yo a naiice o f atoms
..
for D ond. Berk Insurance Agency, I=$
# gtlae:e r red by the le a Is essen•
sew a rule absolute.. to prohibit &e re-
'to coniferedtrisd'a+e#iorr cm tse acliate
epaaden#, as Judges.of the Lylect Court
�piitri. rssidippea�t+e Rues, ale,
Peal, 'Third T3istrict, from taking .
,subds. a, '4 , 31 F.S.A. Supreme Court
jurisdiction of an appeal to that court in'
Rules, rule:l .
which the Matoris the appellee and, Saab
'y
yy�- y1 �p
7IRI�hi f.! ANE 0=42*1
, , ovoldstein e t #10 abC the afepeeltants,
.,
cannot he
�y�r}<yyf��errred
Oia + ndissiatt turns on the question gas
}
{�jcytyiivrz
�eyv`e�n�
V,4 . 4� }R.fi\ii{ iLi7iii9rG lY7+i
� }�a y� j�M� /�/} /� y�/� Qf�
�� :��dFl .Sr,F ii iiil�P'L'
�I N! V ,RXm
..t,
toot filed as refired by the
4f appeal in, the appe ate r rt� as tlis-
,4
api rc,�#ta Gut . V1 ri& Appeltate Rulle s,
e;,1:%iii, (roar thenlig Of�#t»li ZioexcC
rule �3 sa : "k .d; 31 I �5.fit.: up ee aye
.
in atrial oou #ers jurisdiction. WA
Co srt Rules, 'le 12,
the app� eec+eart.'
to a ter n ingy Ise Ctil
du
t t
App�Ii�F �eaa iT ly }
jth�e /t,
yy �
.of Pates Cuiissty ,.t hi► I judgteiw i.F+fwu �.
�+
+! of C3 H3./�L4L1. $% -.:.kS
st"Anutry :�' ifM final4YM.� in }.aM V Dig-
,jat'l iWone a ncf a�#atel`t. can-
BerkInsu.raanCo Agency, which W"
i Jnri ticteor , lees a,t,cc
the clefeodant, and a iast Sam GMeter,
ins file cl rithis�t" time =d in ihe' +er
et Al.,who were the P141atif . the`
r
S
T f
�yS b
e
s•
130 "ire, 3,(11 2 SOUTHERN P"BroitTTR.< 9A. 11NIV 'V1l1
wary judgment was entered Sep€tmber 25,
filing of the notice of appeal in than err
1057. On Novtmbtr 18, 19V, Goldstein,
stance "salted from a clerical misprision,
et at undertook to appellk the final judg-
that on the day the notice was filed with
went by fling a notice of appeal in the
the Clerk of their Court the Clerk was
office of the Clerk of the District Court
busy and overlooked the fact that the
�=
of Appeal, Third District. A. ropy of the
notice was erroneously filed in the wrong
-
notic e of appal had been mailed to counsel
court. In vkw of this background the
�-
for Diamond l3erk Insurance Agency, Inc.
respondents have theview that they could"�_
on November 15, 1957. No notice of ap-
exercise a reasonable discretion in . the
peal was filed with the Clerk of the Cir-
premises in carder to take jurisdiction of
= -
cait Court
the appeal.
-
i in the appellate proceeding in the Dis»
[1,21 Despite what mightappear to be
trict Court of Appeal. Diamond Berk In-
the tnps�citioxt of a hardship, we are t:.arn«
---
surance Agency moved to disaniss the ap-
pelted to conclude that -under applicable
peal, asserting as a ground for the. motion
rotes the timely filing of a notice of appeal
the fact that the notice of appeal had been
at the place required by`the rules is +essctt-
_
filed in the District Court rather than in
iial' to confer yurisditt on 'on the appellate
the Circuit Court as required by applica-
court: W*e have on rnumerous occasions
—_
ble rules, Therespondent Di3trict Court
held in similar situations than jurisdiction
-
took the view that the filing of the notice
could not even be conferred liar consent of
_
of appeal in the wrong court apparently
the parties, wheri the otice of appeal was
resulted from a clerical oversight or saris-
tcaisle rules. not filed as required ,bp app i
_-
prision and did not . deprive that court of
=
+ }
exeniaing a -reasonable discretion to as-
In this instance the'- ee_in the Court
V,,
stone jurisdiction. This girder of the Dis-
of Appeal is strenuously* +�1), ting and has
trier Court was originally b�ght here far
adZrmatively Movedto dist�isa the appeal.
revie +r by certiorari. We denied. the _wait
• '
withprejudice to `apply to this Court
1t
Floridaida etc ules� spe»
Rule 2{a P�
=
•
for a. writ of prohibi#�n under the Prove-
ciiicall delineates thse: ` for cam-
sions.of Article V, Section 4, Florida Con-
meucing an appeal and pz r ice$ $this
stiitution,.SFri., which empowers this
shall be acccompisshed a ittillGC
Court 'to issue writs of prohibition to the
appeal tl�s'..clerk` of the
District Courts of .Appeal. ,See IAitat td
District
lower chart." Rule 3.��d� +clear% states
Berk Insurance .A,gencyj Inc., v. Goldstein,
that the Ming of the.: not! d the pixy
°`
Fla.19A 100 So.24 42D.
in+ent of the filing feo `with: tixt aerie of
the lower courr sbail ` i+ve :the appellate
Thereafter the mlator hereinE 'instituted
court jurisdiCtiaa of �. subject utter
dais proceeding seeking a Vait +of prohiba-
P
and. of the: gartnes toeapa1, last
tisatt directed to the DistrictCain of Ap-
cited prOrasiQn Of t
peal, Thir4 District. A response has been
reacts as follows
filed and we consider the matter now on
the question of whether a rule: absolute
"��eri of k`aling 3�c�ce. The Sim
p
shoidd issue.
+°
of the notice of al�-8h- of
<
the filing fee With l .deck of the
�jW /��{P y� y. contends
y� filing
inV�tMMYfi WRM Y Ml�li of ".
The relatorthat
lower ccxtrt shall Cosat�rt jug
a noticeof appeal at the propel place and
risslictioss of theattr and
within the time prescribed by the rules is
.'j
of the parties to rite ;aepp ►i. Failure
essential to caufer jurisdiction tin an ap-
to transmit a:certifiec3. Y;Qf rise no~-
--
-_
«
P ate court.
tics and the fiiir�g ,f+ee ttl_� clerk cif
`
their response i�lt' respondents tiit5i 'assert'
theappellateCourt'. $fit .�1t�t �kl: �3�t �8-
that it was their vie W that the erroneous
dictcctnal!'
i
P
TA it, Fla. 131
cite ask�*'18.;i3Ve�4Sy��#...
t rnt±?ie v. Saffan, F1a.19,5� i
mAntially eortip iced wkt}i applicable roles.
596, vie spe�cificall,y� pointed out that
It will also be noted that in t'he Holt case
.W
the fling Of 'the ootite of appeal is juri -
w fited ";3ut that �l notice of apgreal
NO
dictionat a7td that an appellate court is
could not he amended after the expiration
witFeaitt r , to a +bresse its jurisdictit ri
of the 'time lirt=it for filing it. Nothing
tint" the ; ttr!ticc is filed within the titnt
iti this of►inscm sliatl be construed as in
'ita #tie miner prescr'bed by the ruled.
any way detracting from the rule of the
u 'the Wei jut mentioned we cited Donin
Holt decision.
`ja 1954, 69 So.2d 316 tvhcre we
f�wisc . irntedi out that a notice of ap-
[5) : Despite our, high regard for tlxc
peal " filed 'beyond the tithe prescribed ' by
judgment of the' respondents as well as
the ruleswld confer no jurisdittion'on
our aggreciation for their understanding
�':
t o oppell a court. 1n bath of the Cases
attitude in this instance* we are cQLnPeilEd
last .td'tliis ;Caezrt dismissedthe appeals
to conclude that they had no jurisdiction
ex Inero %r ota.
to act in the premises.
.,
[4] ,ire thoroughly cognizant of
The grayer for a rite absolute in pro-
the fact that appellate procedure n`tori-
hihition is granted. Irlowlever, the formal
da is gait trough a period of transition
issuance of the rule shall he withheld unr
in view t,# tf�ie amendments to Article V
less it becomes necessary to issue it
of the loiida Constitution which took
In this regard, how-
TERRE, Lty C. J., and THOM AS,
+ Irec`,' we :pair► ocrrt that tine requircznent
�. OBSON and 01CONNELL, JJ., concur.
for filYrig :a .notice 0f appeal with the clerk
•
of the Iciw ,urt whose judg'rncnt is be-
�f,
i6w ,to review J0 nothing new
«
or -nova,_..
esavae requirement *vas pre-
,gibed by` forizier Rule 12, Supreme Court
t
Rule. rior, to the more recent rsn.
f
satu oTts�l a�le�►dffitnt and the gromulga-
t
tion of the; r6a►txtot Florida Appellate Rules.
�
Virthen;i6r�, are here confronted with
The Bi'ATB of Florida ex rel. the Fi.t9R l DA
�i pjt ►1fe tt in-jurisdietion. A count has no
BAR, Complainant,
-
pcavver to ixi'the absencc of a juriadie-
,.het.'
tional fau datim for the exercise of the
v.
Louis T. RANSOM, Respondent
r
*cr« The 'timely and proper friing of a
.Apti=
of'-- l+ ._is a jurisdictional essen-
No. 2$14 &
tial to embie Aa, appellate court to exercise
supreme Court of Fiorld&
its pavrrer«
'e have tot olverlookrd our opinion lii
t
.
Aj hRailroad Co. v. Molt,
RehenrW DeaW May 7, 1f3;�.
'
t
' ,' In the Alt deci-
A case of original jurisdiction—Com-
sigh "Wei: , tit +confronted with a .no-
plaint from the Florida liar.
taee of vvl2ich had not been filed
Within the "',pr4per time or at the proper
iiohelson E. Buchwratter, Jacksonville,
pace, a",theme merely considered ,the
for the Floridan Bar, complaiczmt.
cwutetits of a notice that had been filed
c
iri �iitle Axid iti: thhe proper inanner. We,
Louis T« Ransom, Jacksonville, in pro.
,f
{d that .the ,content of the notice sub-
per., for respondent
i(
1
'T+wYYY1.lY '��u70 71,tt
J
77
3
L
So SOUTEMU r EXPORTEU, 2d 8DRIES
advanced to the partnership all of the stock,
F'or the reasons stated, the judgment
solne of the ktures, the liquor licence, and
appealed from should be and it is hereby
the good will of a liquor establishment
reversed and the cause remanded for fur-
theretofore operated by the def+endatit, and
doer proceedings.
the $5,0W was contributed by the plaintiff;
Reversed and remanded.
that plaintiff cgs not a registered voter in
Connecticut, the place where the note was
'
executed and the partnership business was
DREW C. J., and TERRE.LL and SE -
located, so that he could not legally be
BRING, Jj., concur.
shown as a partner in such business; that
the notes in the total amount of $5,000 were
-
executed by defendant at plaintiff's reques
in order to evidence. plaintiffs interest in11Z"
;
the partnership until such time as he could
be shown as a partner in the business; that
the plaintiff was later officially listed as a
partner with defendant in the business;
`
and that "the notes became null and void
SEA130ARD ASR LINE RASLROAD -- -
and of no effecta,� now plaintiff was a
COMPANY, Appellant, �
partner and his interest was represented
by his having a one-half share in said
V.
business„
beery M. HOLT, Appetite. -
P
e [1, 23 We think that the above allega-
WE -
Supreme Court ofFlorida. �-
tions were sufficient to make out a case
En Bane.
under Section 674.1% Fla.Stat.1953, F.S.A.,
May 11, 2055. --
_
that, as between the immediate patties, "the
delivery Hof R prornissor ► noted may be
Action wherein the Circuit Court, Dade
shown to have been conditional, or for a
.
County, Jae Eaton, j., rendered lint,
special purpose only, and not for the pur-
and appeal was taken. Appellee moved to
pose of transferring the property . in the
instrument. * * *:' and within the
dismiss appeaL The Supreme Court, ab-
rule stated in 'Tharp v. Kitchell, 151 Fla.
son, J., held that notice of 'appeal in
.
27k, 9 So.Zd 4a7, 4ti0, as frrllows:
sub�antial compliance with rune specifying
contents of such notice and was sufficient
-
"t arol evidence is admissible, as
notwithstanding thit -it failed to state where
between -the parties, to show that a►
filial judgment appealed from was rtcorded
'
negotiable note was not to become
and gave date of verdict for date of judg-
.
binding, except upon the happening of
meat.
a Certain event in the future. Such
-
evidence aloes not vary the terms of a
Motion to dismiss denie&
written 'instrument but tends to estab-
Sebring, J., dissented.
lish the fact that the note: as between
the parties never becme a fixed and
t. Appeal and Error 4=417(l, 2)
binding obligation because the event
Notice of appeal, in its eaption, suffi-
in the future contemplated by the
ciently showed court from �lti�h appeal
parties failed to happen car c ur.showed
was taken and, in beady and caption, person
We find nothing in the deposition of the
supposed to take notice of, entry of appeal,
defendant inconsistent with the allegations
and, by statement that appeal wad takt n to
J
of his amended answer, and we think he
Supreme Ccrutt, sufficiently showed that ac4
.
should have been allowed to prove, if he
Eton expwtcd was reversal of ad 41149edly
could, before a jury the defense alleged
errontous ruling 3D F.SA I.Suprme Court
in his amended answer.
Rules, rule 39.
s,
a
f :.
SPIAROARD AM I' M RAZZOA.A COUP fY ROLT Fla. 355
CM *.s. Via., 90 Seal 364
Z Courts 4=216. , Appeal and Error 17(l)
The Supreme Court was established for If notice of appeal gives to adverse
purpose of providing an appellate, carat( to pa Y and rewiev�+ing court information by
review orders, judgments or decrees of most use of which order or judgment intended
of the inferior courts, to be appealed can be discovered in record
with reasonable dcgre¢ of certainty, purpose
3. Appeal and ErrorQ797(2) of notice is a4ccomplished and it is sufficient
where a txotical is so de. to withstand a motion to dismiss predicated
'fectve to fafl substantially to rortform urn failure strictly to comply with pre -
with prescribed ` form, there is a jurisdicR scribed form, � F.S.A. Supreme Court
�tionai question which may be considered ltuieS, rule 39.
given though motion to dismiss appeal is 10. Appeal and Error e&-797(2)
auot timely filed. NN%ere notice of appeal was in substan-
Appeal and Error tial compliance with rule specifying con-
tents of such notice, Supreme Court would
Notice of appeal cannot be amended
after expiration of 60 day period allowed
for taking an appeal.
a. peal and Error l
Purpose of notice of appeal is to dis-
-close -to adverse party and reviewing court
that an appeal from an appealable carder,
judgment or decree oaf trim co'�rt is intend -
judgment 30 F.S.A. Supreme Court Rules, rule 39.
4. Appeal and F-rror 17(1
Forms suggested statutes or rules
-of court for ootice of appeal require only
,substantial Co
mpliagacc and should be held
emptied with if purpose of statutes or rule
been accomplished. 30 F.S.A. Supreme
Court Rules, rule 39; F.S.A. §§ 59.03-59-
7. Appeal and Error 4=419(i)
Invest in a common law action, wherein
-find judgment is only appealable order, it
is necessary that notice:of appeal'state na-
1=1 of, carder, judgment or dit-ree sought to
reviewed; 30 F.S� Supreme Court
Rules; rule '39.
. App"I sold Error !as
Notice of appeal in substantial
co
mpliance, with rule speet Eying contents
-of s ucb: saotice and was sufficient notwith-
-stundii t t it failed to state where final
Judgment appealed from was rectarded and
-gavo`datte of verdict for date o£.judgamnt.
.30 F.S.A. Supreme Court Rules, rule 39.
take cognizance of fact that appellee had.
failed to fide motion to dismiss within pre-
scribed time, and deny motion. 30 F.S.A.
Supreme Court Rules, rule 39.
Fowler, M hite, Gillen, Yancey & Hum -
key, Cady Fowler, Walter Httmkey. Miami,
and James E, Thompson, 'Pampa, for ap-
pellant.
Nichols, Gaither, Green, Fra:tes do Beck-
ham and Sara Daniels, Miami, for appellee..
HOBSON, Justice.
On October 29, 1954, we enured an order
granting a motion to dismiss which was
filed by counsel for appellee. In our per
curiaam order we stated: "The motion to
dismiss the appeal must be granted under
the principles laid dowry in Brown v. Louis-
ville Fire & Marine Ins. Co., F1a.1950, 47
So.2d 862, and Longo v. Alweiss, F1a.1953,
6S So.2d 556; see also Green Y. FresiCrick-
sen,2133 Flay. 429,182 So. 785. "
The precise question then, as now, pre-
sented for our determination is whether
the notice of appeal tiled in this case by
appell=t substantially complies with the
foray of notice of appeal which follows Rule
39 of tht Supreme Court Rules, 30 F.S.A.
The notice of appeal filed in this case
reads as follows:
"Notice of Appear
"Notice is hereby given that. Seward Air
Line Railroad Company, defendant, hereby
I
So-UTnERXREPORTER,
2d SURIFAS
Fla.
so
appeals to the Supreme Court of Florida, "lion in favor of Hettry M. Holt
from the final judgment entered in this (Italics supplied,) It goes a step farther
action in favor of Henry M. Holt, on the and gives the date of entry of "the final
12th day of Vebruary, 1954. judgment" as "'the 12th day of February,
"Fowler, White, Gillen, 1954." The record.. discloses that no final
Yancey & Hunikey judgment was entered on the 12th day of
By: /s/ Walter Hunikey
February, 1954. 1he transcript o record,
however, does show in the copy of the final
judgment and elsewhere that the jury ren-
Attorneys for Defendant
dered its verdict on February 12, 1954.
507 Biscayne Building
Miami, Florida
(1] Appellee contends that the notice of
"I hereby certify that a COPY Of the above
appeal in this case does not substantially
comply with the form prescribed by flee
foregoing Notice of Appeal was de -
Supreme
Supreme Court Rule, supra, in that it (1)
Livered to the offices of Nichols, Gaither,
does not state what court is appealed from,
Green, Frates & Bcckham, Attorneys for
(2) does not state the date of any final
Plaintiff, 448 Pan American Bank Building,
judgment in the record and refers only to
Miami, Florida, this 10th day of April,
the jury verdict, (3) it does not state where
1954.
any final judgment is recorded, (4) it does.
W Anne S. Rudick"
not state what, if anything, this court is
asked to do, and (5) does not state who is,
It will be observed that the notice of appeal
supposed to take notice of the purported en -
quoted from the transcript [p. 1559) does
try of appeal. The caption certainly shows,
not carry a caption. However, the first ex-
the court from which the appeal was taken,
hibit in the transcript, namely, the com-
and likewise the caption as well as the body
pWint beginning on page 2, carries the cap-
of the notice of appeal shows, that Henry
tion in the following language:
M. Holt, the plaintiff, is the person who is
supposed to take notice of the entry of the
"In The Circuit Court Of The
appeal. Rabinowitz v. Houk, 100,FU 44,.
L-leventh judicial Circuit In
129So. 501.
And For Dade County, Florida.
At Iaw* No.28787
(2) With reference to the suggestion
`Henry M. Holt,
that the notice of appeal under considera-
Plaintiff,
t6n herein does not advise this court just
what is expected of it, we need only say-
V.
that the very purpose for which Florida's
Seaboard Airline Railroad
Complaint
court of last resort was created, refutes the
Co,, a corpomtion authorized
imputation that said notice is - fatally de-
todo business in Florida,
festive in this regard. This court was es-
.
DefendanV'
tablished for the purpose of providing an.
appellate court to review the ordem judg-
The caption thereafter throughout the
ments or decrees of most of the inferior
transcript, as is customary, is omitted. We
courts. The only reason any party to litiga-
may assume, in the absence of a showing to
tion could have in filing a notice of appeal
the contrary, that the original notice of ap-
would -be to bring to this court for review
peal did, as each other paper filed in the
a ruling of the trial court which said party
cause, carry the caption in substantially the
considers to be erroneous.
same form as the one appearing on the
The notice. of appeal does not follow the
transcript copy of the complaint.
prescribed form in that it fails correctly to
The notice of appeal in the instant case
state where the final, judgment, as recorded
specifically states that the appeal is taken
and does not state the corre#..date of the
"from the fin4 judgment entered in thU
final judgment disclosed by this rt cord.
SMAJROARD AM MM RAMROADOOMTANY HOOT Fla. 357
cite gF, FIX-, 80 80.24
t3, 41 Counsel for appellee contend fur- be liberally construed in the interest of man-
ther that since no tsdid notice of appeal was ifest justice. Price v. Horton, 76 Fla. 537,
filed within the time faxed for the filing of 80 So. 345; Rabinowitz Y. Houk, supra.
auth a notice, this court lacks jurisdiction We are also convinced that forms sug-
ov+er the subject matter. We agree that if gested by statute or roles of court requiring
the notice of appeal Is so defective as to fail only substantial compliance should be held
Substantially to simply with the prescribed to have beencomplied with if the purpose of
forrit, the question presented may become the statute or rule has been accomplished.
one of Jurisdiction in which event the fact Price v. Horton, supra.
thmt appellees tootion to dismiss was not
filed wifi the time allowed by the Appellee lays great stress capon the case
Su-
preme Court Rules would be of no .moment. of Green v. Fredericksen, 133 Fla, 429, 182
Moreover, the notice of appeal cannot be So. 755, and asserts that it is directly in
amended `after the expiration of the sixty point with, and should be controlling of,
day period allowed ' for taking an appeal. the question presented herein. It will be
t d th t the cited caw se as an a uit suit
It is obvious from a reading of the sug-
gested form following Supreme Court Rule
39 that it need. riot be complied with down to
the dotting of every `T' and the crossing of
every "t". The form set forth in 30_ F.S.A.
page 157, 'is preceded by the following.
"`The Notice of Appeal may be substantially
in the form following:" So it is we are
squarely fated with the question whether
the notice of appeal filed in this case is in
substantial compliance with the prescribed
form.
[5, 6] This court has ofttimes stated
that the purpose of a notice of appeal is to
disclose to the adverse party and the appel-
late court that an appeal from an appeal-
able order, judgment or decree of the trial
court is intender "bite need only direct our
attention to, the failure of this notice: of ap-
peal to give the book and page number and
the d of the, final ,judgment reflected by
the rewrd., The record, however, dries,
is�ect only one appealable order, i, e., the
final judgsiwt,' andgthe notice of appeal
states un tuvoctly' that the appeal is
-directed to ` the isal j udgmerst entered in
.this,- act$" in favor of Henry M. Holt
(Italics supplied.) The instant
suit is a common law action and we have
consistently held the only appealable order
[with the exceptions noted in Sections $9.03,
S9.t14 and $9.05, Florida Statutes, 1953]
is sack a ;unit is the final judgment, We
are, persuaded to the view that -we should
return to the position taken by this court
that -stout giving a right of appeal should
no e a Ity
and was decided at a time (July 13, 1938)
when interlocutory orders and decrees of
a chancery court, as well as final decrees,
were appealable. Under such circum-
stances the failure to give the correct date
of entry, and the specific chancery order
book numbers and page of recordation of the
order or decree sought to be appealed could
cause one's adversary to be confused, if not
misled, as to the exact order or decree ap-
pellant intended to present to this court for
review. The present suit is a common law
action wherein as aforestated the only ap-
pealable order is "the final judgment". For
the foregoing reasons we consider the
Green case distinguishable.
In the criminal case of Bell v. State, 154
Fla. 505, IS So.?d 361, the notice of appeal
simply stated that the defendant "hereby
takesand enters this his appeal to the Su-
preme Court of Florida * * *." It was
wholly insufficient to permit discovery .:with
reasonable certainty of the order or judg-
ment intended to be brought here for re-
view. Patently there was no substantial
compliance with the prescribed foram in that
case. In Longo v. Alweiss, Fla.1953, 65 f
Sold 556, the notice of appeal was likewise
in loose and general language as follows
"The above roamed'def+endant, hereby gives
notice that the above styled cause will be
appealed to the Supreme'Court of Florida
as of this day." Here again the notice was
obviously defective.. Counsel for appellee
have directed our attention to the decision
in Douglas -Guardian Warehouse Corp, v.
I
S Via.
80 SO HERN RUOUTM 2d SERIES
Insurance .Agents Finance Corp., Trla.1950,
trial court in a common law action which
46 S*.2d 169. Tltc notice of appeal in that
appears from the record to be the only ap-
cast showed clearly* that the defendant at-
pealable order contained therein.
tempted to take an appeal from art order
It g
goers without saying that i# the nn°ice
Which we have consistently held to be non-
of appeal contains the correct date, and the
appealable,i. e:, an order denying the de-
exact book and page or recordation of the
fe>7dant's motion for a new trial, Our rut-
ing in that case was simply to the effect that
order or judgment intended to be presented
the appeal should he dismissed because of
review, the convenience of the adverse
the clear intention a# perfecting an appeal
party and of the appellate .count in readily -
party
tQ this court from an order which was not
locating such order or judgment is accaert-.
appealable. Compare %iertdersan v. StCY•
m-adored. But such information is not e5-
ens, 1946, 15r" 1~ia. 641, 2Ei So.2d 65t5, The
seritial to discovery of the order. or judg_.
attempted appeal in the case of Brown v.
snenE amended. to be presented for review-
Louisville Fire & Marine Ins. Co., FiaM1950,
in a common law action such as this where-.
4i So.Zd �2, 863, a common law action was
in only one final judgment or aippealable�
dismissed, but the notice of appeal in that
order appears %n the transcript �f record.
case# as in the rases of Bell v. State, supra,
We do not believe that the vital question of
.
and ]Longo v. Alweiss, supra, merely stated
jurisdiction should turn upon the relatively
that the plaintiff "files this, his Notice of
urumportant matter of inconvenience to an
Appeal to ehs (sic) Supreme Court of Flor-
adversary or to this court.. The pivotal'
ida in the above styled cause sand calls uponPost
is, as it should be, whether the notice
all parties hereto to take notice of this ap-
of appeal is sufficient to eifectuate its pur--
peal' . However, we did state in our opinion
Pose.
that the suit was dismissed because the
In Brawn v. Louisville Fire & Marine,
notice failed to specify `'the %dure of the
Ins. Co., supra, we stated,, 'inter alia, that -
order, judgment or decree sought to.be re-
the date of rendition of the order or judg-
viewed, when it was rendered, or where it
ment appealed from should be specified im
is recorded." (Italics supplied.) We con-
the notice of appeal so that the appellate-
sider this case to be more nearly in point
court and the adverse party might deter-:
with the instant case than any other which
mine, from an inspection of the notice, "that -
has came to our attention,
the appeal has been taken within the time -
,prescribed by law." Upon further consider-
[7, 8) The notice of appeal in the in-
ation, we do not Relieve this reasoning to be-
stant case does specifically state "the nature
tenable, as aplilied to such a case as this,,
of the order, judgment or decree sought to
because of our holdings in Kent v. Marvin,.
be reviewed" which, even in a common law
Flay., 59 So.2d 791, andRed-wing Carriers,.
action, wherein the final judgment is the
Inc., v. Carter. Flay., 64 So.2d 557, oat if ia.
only appealable order, is indispensable be-
motion for new trial is wade in a common•
cause without such in orimat ion it would
law or criminal action, within the time pro-
be almost impossible for an adversary or
vided by law, the running tt# the time al --
this court to determine that an appeal from
lowed for taking an appeal is trilled until'
an appealable order, judgment or -decree of
such motion is disposed of by the trial court.
the trial court was intended. Although we
Theis din a common law or critn ittal case a-
do not condone the failure of an attorney to
computation of time based upon the date of
carefully follow the simple prescribed form
the judgment appealed from, Mated in the
for a notice of appeal, we are not satisfied
notice of appeal, cannot be conclusive of
that his failure so to do should be declared
whether or not the appeal has been season --
fatal when from the notice of appeal which
ably taken.
he does file the adverse party_ and this court
are placed, upon notice of the intention of
(9) We are persuaded that &'t ends of
the appellant to bring here for review, as in
justice will be subserved by inv stion of
this case, a final judgment entered by the
the basic principle found In tile„ °rule Wift
�'""" 3 ,:
ALUARO - SATP. FIR... V�v�
Cite Ais, Via., t* SoAd.
reference to a description of res.l property
elude that the motion to dismiss must be
in at deed of conveyance, i. e., if by use of
denied, and the original opinion receded
the description contained in a deed the
from.
property intended to be conveyed can be
It is so ordered,
certainly and definitely located, such de-
scription is sufficient. We hold that if the
DREW, C. J,, and "li EI2TtELl., TI1OIti-
notice of appeal gives to an adverse party
AS and ROBERTS, JJ., concur.
and to I the appellate court information by
the use of which the order or judgment in.
SEBRINC, J., dissents.
tended to be appealed can be discovered in
the record with a. reasonable degree of
THORNA4 J., not participating.
certainty, its purpose is accomplished and it
should be held sufficient to withstand a mo-
:tion to dismiss predicated upon failure
strictly to comply with the prescribed form,
m Teff"Pt rtr
It is our considered judgment that the
'
-ruling made herein is sound, as well as gust,
and that this case is not controlled by any,
of the decisions heretofore cited. Ilowever,
Phillip ALBANO, Appvllant,
if any pronouncement which we have made
in any of the cited cases could be taken as a
precedent for holding the notice of appeal
STATE of Florida, Appellee.
which was filed in this case to be fatally
Sure:ne Court of Flarlda.
defective, we repudiate any suchinference
s Bauc
and expressly recede from such pronounce-
ment. We have always entertained, and
May 11, 1055.
on several occasions have expressed the
view that we should not tear down former
Appeal freers Criminal Court of Rrc-
decisions and lay anew the foundations of
ord, Hillsborough County; L. -A. Grayson,.
the law.unless we are impelled to do so by
Judge.
strong and controlling considerations. If
Frank Ragano and Edward 1. Cutler,
it AWd be thought that we are failing to
Tampa, for appellant.
I .
follow any prior decision or decisions we
cu only say that after careful study we
Richard 'Wt. Ervin, Atty. Gen., and Maie
cainnot permit an obvious inadvertence
,
J. I.., Tendrnch, Asst. Atty. Ccn:, for appel-
which prejudices no one to defeat the right
lee'
Of appeal and the determination of a cause
PER C."f 1lt'fANI.
upon its merits.
[ltlj For the reasons stated herein we
are convinced that the notice of appeal it
this cast complies substantially with the
Prescribed form. In the fact of this ruling,
it is quite clear that the question of juris.
diction is not involved. Consequently, we
F must take cognizance of the fact that cou n.
stl for appellee failed to file their motion
to dismiss wifilain the time prescribed by our
rules, that is to say, counsel neglected to file
r, the motion to dismiss within ten days after
having r+ectived a copy of the transcript of
record. We are, the 7efore, forced to corer
This rase is controlled" by Seaboard • A.ir
Line Railroad Company Y. Bolt, 80 So2d
354.
For reasons stated in the opinion in that ,
case, the motion to dismis, the appeal herein
must be, and it is hereby, denied.
DREW, C. J., and TERREL1., THOM-
AS, HOBSON and ROBERTS, JJ., con-
cur.
SEBRING, J., dissents.
THORNAL, J., not participating.
of .sere iee of the notice. Even allowing UgP
additional five days provided for by ltule
Roy SKINNER, ,Appellant,
_
4.030(c) tfeftuse the notice was Served by
mad, the petition was I.I. days late. `i'�e
FLORIDA POWER
JCC issued a ca on that peon
CORPORATION, Appellee.
�-
for insolvency w untimely and requested
this court to instruct him as to what actions
No. W1054.
-
'he should, 'take dad the petition. '% court
District Court of Appeal of Florida,
entered an 'order directing Appeftnt to
First 17istairrt»
show cause why the appeal should not be
dismissed. and the _ appellant has iced a
July 19, 1990.
response, it is showntlmt the claimant is
a Haitian sn who apealas very little l gli h
Claimant filed workers" compensation
and Who insides in Immokalee. Tlm l i ii:
claim after settlement was made on bene.
ant was sent the petition by triad to be
fits. The Judge of Compensation Claims,
executed and counsel, upon its return, im-
William D. Douglas, entered initial order
mediateIy forwarded it to the JCC.finding
employer was responsible for addi-
� We discharge this courts of
t nai costs of home incurred o male it
tional
Wheel chair accessible, vat+ed that order
�-
June 14 and advise the JCC that he has
tD permit correction of statement of ern-
T
jurisdictiion to extend the time upon a show
ployd�r's legal position, and entered eorrect~
trig of good cause. The .petition s clear-
ing
ed order, and employer appealed. 4n
-
ly untimely under the express of
claimanes motion to dismiss, the District
-=
Rules 4.184(f)(2) and 4;480Qcj. l evariiire-
Court of Appeal held that notice of appeal
f less, Rule 4.210(a), `provides that the JCS
which purported to seek review of 'initial
shall lz ve jurisdiction over matters l? -
orrder was not so defective that employer
ing to preparation of the record on peal.
aould not obtain review of subsequent corms
Further, unless a time period is jur
rected order.
i
tionat, a tribunal may permit an act to be
dune, even after the expiration of a speci-
Motion denied.
fed period, where the failure -to et w
the result of excusable negligence: &e
1. appeal and Error "+
Qanernity 65 F a.lrtr.a d Ili (1984).
Whether appellee � prejudiced
_
'Thus, we find the JCC has�urisdi are to
by, defect in notice of appeal is standard by
en stain and grant an extension of time
which aFpdkte court determines whether
t'
upon a showing by the appellant of goad
defect is gurisdictioual,
f-
muse for his failure to tamely serve the
petition, which would allow, the JCC to
L Workem' Compensation 0=1877
4-
receh and act on the merits of the petition
rme for tag, sgpeal`does not begin
for certification as insolvent.
anew when workers' cx mpen order is
P
amended in immaterial ws3r, that rule
' liil'+,NTWtJ TI , NIMMONS and
would not apply, however, where ` orl$i
order is vacated and another, amended or-
ALLEN, JJ,, concur.
der is entered. Weses FS.A. W.MP.
Rome 4.141(a, b).
8. Workers, Compensation 0:01"4
9;=
Notice of appeal. p"�ig o aeek
G KEYttw Rsrstda
review of Wo�' eomponsat3orr
order, wldch had begirt
.
J��ra�l yy�t���yd/yRatp�request
of e[1*yer to permit'lie71! #%Si�M.�.ou of stag
-
-
meat of its legal posidoo, vather than from
_
subsequent corrected order was not so do-
S:
7
t y";
cC BICILI.STAT19 573
Cite at 5" 'S0 5713 (FhApp. 1ML IM)
fective that employer could not seek review
anal. This is the standard by which an
coated order.
appellate court determines whether a de-
fect in a notice of apt is jurisdictional.
Dorothy Clay Sims of Sims DiLorenzo,
re fund Coo, v, CaMWA 181 So.2d
P.A., and Jonathon D. OhIrnan of Fattillo &
638 (Fla.1 6); Wemett v State, 536 So.2d
Ocala, for appellant.
949 {''ia# 1< t IiCA I638}s Further, appel-
ICurtt Preston Iampp, St. Petersburg, for
lant argues that the amendment to the
;order was not material. Where a workers'
appellee.
compensation order is amended in an imma-
CN APpELLEE'S MOTION
tedal way, the time for taking an appeal
TO I3I MI
does not begin again. I)tc4a l County
School Board v. Rupp, 4114 So.2d lid (Fla.
PER CURIAM.
1st DCA,198 ). That rule would not apply
Appellant was involved in accidentin
this situation, however, where the origi-
which confined him to a wheelchair and
nsl order is vacated and another, amended,
which the self -insured employer accepted
order is entered by the JCC. See Fla,.W.C.
as oompensable. A settlement was made
R P. 4.141(a) And (b),
on the; benefits and the appellant subse-
(3) We nevertheless deny the motion to
t
quently built a, new home. He filed a
dismiss. The notice of appeal contains a
"claim, seeking to have the entire roost of the
scriven+ees, error but appellee has failed to
hoc► paid for by the employer. The Judge
demonstrate that the defect is jurisdiction -
Of: Cantpertsation Claims (JCC) entered an
al. An analogous problem was addressed
order ceding that the carrier was r+espan-
in Fugaa v. Suave Shoe Carp., 417 So.2d
Bible fora certais p+ert"ts a of the coat of
678 (Fla. 3d DCA 1981). 7bere our sister
home, those, additional coats which'
court considered en bane the question
Were incurred to make it wheelchair atees-
whether a notice of appeal which purports
ale. The order. entered March 9, 1990,
to seek review of an order denying a nno-
stsd thutt the employer's position was
tion for new ,gal was, so defective that the
mat it denied responsibi far the coat of ;
appellant could not obtain review of the
ramifications to the home. In fact,
subsequent final judgment That question
ap llee had agreed, to pay for some modifi-
was answered negatively and we believe a
ca orts, but disputed t1w clsimx for the cast
similar result should be reached in this
'
of,the Mire home. The employer request
case. Accordingly, appellee's motion to
ed'the March p order be vested to pearWt
dismiss this appear is DENIED.
c orrection , of that statement of its legal
position. The: J'CC entered I corrected or
WENTWClRTH, NIMii£ONS and
Or on March 21 and a 'notice of appeal was
ALLEriI, dJ., concur.
filed on ,A,prii The notice, however, re-
that,aPpearit to seeking review of the
a �� 4Ni�1i1"i*EM
Omer of March 91
I.2] The ap"llee moves to dismiss
appaLt contending that the order of
9 was vested and #tat a silbstan-
Freddie McCASKILL, Appellant
change was made won the JCC en -
tared an air ended order. :Si time appy
V.
hit is see)ft review of avacated order
STATE of Florida, AppelQee.
d :% not, ...timely. sought review of the
his. 89-1784.
d+ed r'd `: atpp+ot)+ee argues t4 otttcrt
District Court of Appeal of Florida,
is without jurisdiction. Appeilant opposes
First District.
ci►issal, conceding that the note of ap
1pw. mwtWes, the wrong order as the sub-
July 28, 1890.
f of ibis appea% but asserting that Me
n even afted my pm*&*
Defeadaant was convicted in the Circuit
A resat of the defect in the notice of
Court, Escambia County, Nickolas Geeker,
.w....-...mow.
m..�
..... ... -
H
l
to
CITY OF ST. PETERSRUM v. ST. PETERSBURG YACHT Fla. 1,19
rmay OppW constitutes a departure from
Tile Crff OF ST. PETERSBURG, essential, and fundamental requirements of
Florida, a Munieip Corporation, lase.
et al., AptAlants,
'V.
ST. PIETERSBURG YACHT CLUA a
Florida nonaproflt Corporation,
Appellee.
No. 76-1872.
District Court of Appeal of Florida,
Second District.
Nov. 16, 1977.
Proceeding was instituted on petition
.for certiorari following objection by appli-
cant for zoning variance to conduct of city
council in entertaining or considering an
,appeal by a citizens organization from
granting of variance. The Circuit Court,
Pinellas County, Allen t. Anderson, J., is-
sued a writ in favor of applicant, and citi-
uns `organization appealed. The District
Court 'of Appeal, Ott, J., held that: (1) a
party litigant must object in an administra-
tive hearing in order to properly, under law,
perfect right of appeal to a higher adrninis
tratire tribunal when ordinance is silent as,
to who may appal, and (2) issuance of a
writ of certiorari did not prohibit a city.
from amending ordinance so as to properly
authorise a civic or citizen organization to
be heard in decision-nmaking proms of city
government.
Affimed as modified.
I Zoning 15 , 351
Neighborhood association did not have
right of appeal to city council from grant of
zoning variance by city's environmental de-
velapment COMMission, where association
had metered no objection before the .corn -
mission and ordinance was silent as to who
might appeal, but city was not prwjuded
from amending its ordinance so as to prop-
erly authorize civic or citizen organizations
to be heard.
Carl R. Linn, City Atty., St. Petersburg,
for appellants. --
John T. Allen, Jr., St. Petersburg, for,
appellee. =�
OTT, Judge.
Pursuant to the authority and require-
ment of existing ordinances the Environ-
mental Development Commission [EDC] of
the City of St. Petersburg proceeded ` to a
public hearing on the appellee's application
for a zoning variance. There were no. ap-
peamm before the EDC in opposition to
the appellees application, although due no-
tice had been given thereof. Two weeks
later, the EDC met in executive session to
sift the evidence and render 'a decision. A
member of the North Shore Neighborhood
Association [NSNA] appeared at the exem-
tive union to request ' a delay in voting
until the NSNA. could study the application.
L Administrative' Law and Procedure When asked if the NSNA had formed sn
SL r opinion which they would like to eft
party in gan must object in an ad- the meeting, the NSNA representative re-
ministrative bearing in order to properly, plied that they "had not been advised
under law, perfect right of ' appeal to a enough- to take it into consideration."
h her adminis# live Tribunal when cardi- `fteir request," according to their repre�-
nance b silent an to who may appeal. sentetive, "was to be 'given time to study
t 2. A.dmiadstrative Law and Procedure
►512 At no time did the NSNA register an
Consideration of an appeal to a higher objection to the appellee's appiic4tiott or
4
adrmnxstrative tribunal without an objec. advance any grounds f€ir its denial.
tion being lodged before initial administra The EDC proceeded to approve the appel.
tive body when ordinance is silent to who We application.
3k
l
Fla. 362 800 M.RN REPORTER, ?d SERMS
The NSNA. ten unde took an appal to
lower court su;ggestsi that the city is prohl b -
the 01ty Courexl from this decisiot of the
it d from so doing and in this we dingree.
EDC pursuant to Article IV —A, Swtion 6C.,
The tie of Silver Star dtktnsI Committee
.fi()(Xe) which reads as follows:
v. CVW Council of Orlando, 194 So2d 681
,Appeal procedum. A. deeision of the
(la. 4th DCA 1967) cloals with the standing
CommiWon resulting from action taken
of parties before the eourts of this state and
under the power granted by this section
should not be construed as limiting a city of
may be appealed to the City Council.
this state as to theme It may properly choose
Such appeal shall be accompanied, by a
to hear.
fee of [$80) and filers with the Clerk of
As modified or clarified herein the lower
the City Council within [80) nays of the
court is affirmed.
!Conminion's action and shall clearly
i
a
state the decision or decisions appealed
p
GFt111IES, Acting C. J., and McNULT'Y,
from and the basis for the appeal.
JOSEPH P. {Ret.), Associate Judge, concur.
Appellee objected to the City Council en.
tertaining or considering the appeal of the
,.
NSMA The City Council overruled appel-
o r�r eaasrsrEx
1ee's objection and refused to dismim the
r,
appeal.
Appellee thereupon promptly applied to
the., lower court for its writ of certiorari,
which issued in due course. The City of St..
s`
Petersburg has 'app"l vd to this court.
'WORLD BUSINESS CONSULTANTS
[1,23 We agree Vith the lower court
LTD, INC., a Florida Corporation,
that where the ordinance is silent as to who
Appellant,
may appeal, -
It is fundamental that a party litigant
AUTONOTIE FINISHES, INC., a
must ob*t in an administrative hearing
Foreign Corporation, Appellee.
}
in order to properly under law perfect the
No. 7'd.
right of appal to a higher administrative
.;
tra`bunal.
District Court of Appeal. of Florida,
t,oniiideration of .such an appeal without
Second District.
an objection being lodged before the ini.
Nov. 16, 197'7.
1
tial administrative body thereby permit-
i
tang that body to have an opportunity to
pan -upon the grounds raised in the sap-
On appeal by plaintiff, a Florida eorpo-
peal constitutes a departure from the es-
ration, from an order of ,tbe Pinellas Cc►uIIty
sentiel -and fundamental requirements of
Chit Court, jarraes B. Sanderlin, J., grant-
i
haw.
ing the motion of defendant, s foreign ter-
See Orkn& mart Co. v. Florida Railroad
poration, to abte the action for lack of
& ,F'atallc Utffltie8 00wmiasir�n,160 Fla. TITS,
ju risdktion, the District Court of Afipeal
87 So.?4 321 (1W).
held that the complaint alleged sufficient
[8) We therefore affirm the lower court
Jutisdictional facts to obtain personal ju ris.
in the isauam of its writ of certiorari
dietiou over defendant pursuant to Florida's
without prejudice, however, to the right of
to «srin statute aAd to satisfy
y the corsti-
the City of St. Petersburg to amend its
tuUM) "minimum coataets" r6quimMent t
ordinsums so as to properly authorize such
accordingly, the burden then shifted to de -
civic or citizen orgy rilutions as the NSNA
fondant to snake a prima facie Showing of
to be heArd in the de ion making pros
the inapplicability of the long --am statute,
of city government. The holding of the
Reveres, With directions.
y
WT '` -
np`dtted (c lete legal description or file with Hearing Boards Office) -
li�ATCtla de..Ver_l -
s r—
,r Oak,;
p Ott 6#06re Drive
,t Ki
� ldrfd �3133
24.5-
' ZONING
S »2 Caton t .6 ;oVc Centrat-commercial district
gQl Spec:#lxceptan as listed in urdi�ante pia. ljoitt, as Amended, the Zoning Ordinance
oft c,City 0 Jji i, Article g, Secttart g3�.9 Joint park#�� facilities far
Cac�tigunc Uses, to allow the sdJoini,ng lots.above to combine parking facilities,
f� r including'acc+e sways for cone g�ous use. Zoned SD-2 Coconut Grove Central
c
orci bistr'3�t.
77
Tho WO'rks Do rye s
`t1 �
_-
exiting the
MEMO,
MOW—
Leted N "Right
r
Tura —
t
Alf
.. .,
Ems
t
-
lv2
*{ 'Ll r:9 :.
b
t J
{
TWA
SIR c
r >t
its; t figi:�
Y .,'
Y }
a].kl�om
zi
S
!
y
YOU
Knonly,
d x - Y lY� �
r v .,
r
c a
wpm MA
3 N..
-fist k n t it, _
i i� pL
VAT
Toms
xr
its t
TOO bl�f
�.y1 ji _
Fi 4rF
i3�' i�1
•A
,'
fY
.r``f{ y :. ..
u'.n
::� ,t .:..fit ,.. ti... � . , .� .asz. th.._..,., .t, : ��, ,,,.r �.i _. , � _u {;: �.:. _•s 3f-
• e�
reC3 :'4 e Bark et offered the following Resolution
and moored its adopts wn ,
-93
A?TER CONS. DERING. THE FACTORS SET FORTH
13 0 THE
SI1I �Il� lO 4 n M wI Opl�'YA O 6}'1���`i ffi��S1yN ii elf
�i+. =
,YI�I M �!{�Jl� /�Yq� W!}, �
Boj= RAN
NI
EXCEPTION AS LISM IN ORDINANCE NO. Q
THE ZONING ORDINANCE
Vr AS AENDD-
Y
I r t�F' 1I' , ARTICLE 9, SECTION
( F'q �
5 ..
iy
.
yyIA
{
FACILITIES WAi ail�T.i FOR
- FT .
i
E e/
O i 30 s ',1SE5 T101,
LOW HE ADJOINING
`GCiIN P IN
$ �tv*TO e
LOTSFOR
4 i I''IG� US ;USE, -_2, Ct�GOiaiU`� GROVE SD
THE
OS C11%=RCIAL DISTRICT, FOR
AT 043-3Q5'9 GRAND
pR€�FSR OO1 TEt ;
A N E A 5 DESCRISED AS. -, AT -
�
POINT I BEN HUNDRED FOATT- THAES Aid
''`'
TIME N:S (1 4 , 3 FEET
SO " OORNE { t3 T
iAI 'nit: , . 1 / fir) :'F` .OR"�R
QUARTER (4
TOWNSHIP
' RUN
t,
DOE TOR'�r!__0,NE�, (41) r " HG
NINE
HUNDRE p TWENTY
r WT
1 t) FEEtRUN:EAST Q" HUNDRED
12 0) FEET, ° HENCE'SOUTH
##�
y/Ty
{��j {y
TN
.. ..•
i[jam}
STbgGIN q
...
. ' POINT OFX' y
'TAM_
SOUTHIII 'I"Y- ( 3 3) 8ET OF T�
�� TRACT OF LAND WHICH H" 481" oIr
v
F
F+ R� ED
.Sas T THE A D RIS
SI 3 i
:
SIT IV -1N Tim, COUNTY OF
*�
E � AT• IMITATI i Off'
—
r
If WH
x}jw
INEDA
I S "4 NI
�_
O TH'P '
LANNING,LD
DEPARTWK
-5 �YI I s_
1 -I � . � ' I . ,� _ m
_ }
�-�
w--
-_
,. ..
.11
..
, _ _ e
-
—
.a-.:.
—
. 'ii
t--
:. ,
Ti ,
- - _
Von
. �_ c b► ;tom. Lorenzo Luc
the _
_;'*-__"V'l______';"_' " ;. �ryp� p�y�
I Ise-.
a 3 k
y y,
G ` err
,4 : �f Mti
s:
yX
r
.'
.. -
_ �.�71i
{/�yy■�■ ��!i{ `a�
li���6 a� 4 mum
Il—
y ..
-
t t - -
-
�'
..
_
�
, -
W} X
}M
..
,
..
J-
C
F .- , ,.
t :
_. .r _ r
vl
-
1
.
:.
-
fi
,t N
-
-
-
-
_
4`
�
. _ f
..
I5 `'-
_
ti-
y4g
1
-,
Z
: .
f" i
-,
-
.t +
i
1!��—�
is a' -.
,.
''
.Y'+II`iv
�-
1
,
WM f
'
.
r:
y tig
>+IL=
- -
Y ..i
- -
, :.
%i, _ -
.: �. .:
-
.
...
m7 . .. 1, .
-
.:
.;a
-
Rye S s'
3,s
R
,01
3
t
t—
S E
`1�15
t
-
I , �'
s
.. -
t - +
S'
.
1 t
IT
qktm.
w ��,
�c t,
{
{
iw
r—
{
i�
..r u
t
1...
-
�Iili
+
a
,� } f.,_
t
s—
t
i
,£
..
,,
M
,y,
4zI
tf
R.Fl )
A . F
-=
h o.f 3 's•f
-g,I
. ,_
t y
t J 3—
,yxY {
y
M
4
ytU9 Y'y (' S,� is
L
i }
b
i _
W�j t
- a
,k
s f}}{ r 4
-
I
-;
"�:�
',.I
�r
1 � ;
I i
I','.-
-I.
�I,,
2
} k
.
:
}
J1, ''.
�:1
�I,!
,� " .'.r,- : .
,� ,
, - : .,',
�
.
�
."
,�"
-
h i t Ate_
� 'e# i i' it.
57#
i,,,�,CC03+
1..�..
I-'',
'
:
I',
l;
i
'�
1 +
R mkt f 'u y'f •:
'
'-
,1w v.
"iZI�,
,I�
I t:
'- '': �
"-
:I:1"_"
:��'I�
'.
;`.
,�.,'"
}
,
t 3..
�t �.�' S?
{s
I,
1% 1
"I,,
1`I.,-
""—I.
h J ` t z r
V1- i �'� t' } y- �
T
-
-.j,t"
y ''-
Y
_ rys
,'`'- }
' ur i�
N t; 7 3S{
�-7
1. �
�a 1 ' Y S
,-. tI" -�'-_
Ij;'.
."
4
_ ,'.� f A5 t
Zi
1 "
T r9e
.'-� '
'1
`i ,.2 s t'
.:
".�l'
'I_
I' '�, :,
"�_,�."
-
'i-
Jyt'-'YSJ- �- s _�c,
F
4'i t 1
-I:-"
:rF tE3
h
- 3 3
S
`f'y--.._`�.i<'r
""
4 r zk
-,-
_
yRa *• 3 _ i Y 3:: 2
. a
�. _.
ki , '�•-1''.{'s.(9"r.
,iE
_ - vxtl�'a`!.Sxsrf. ,f,..,xs, .,..
��'-''l
".rs�'S, r�
ake
-.. .. e,. .K.4�}�a k, R#�'-
,zY
z7
1.;?.n 'N�,i t'TcM,.,v. S ,
3 : IY 3s.i II���t��'. •
..s .4 ,. ., ., .,, �.�, ...x.. lr.w. ', Wa'.�'i'nsN?r}
__ s`
_
File HU401tt
�* FOR SPECIAL EXCEPTION
A4
, thin tht city pro IY
qi' �tltt4it P"t tt� tri�Ing district$. �
this
C t"t�i struct IW
lot otcUP 0 4% 1 i ad review
sty t°dtn0COf, lk fttui + ui�� ybe 04mitted io specifi
t# doter no+ht!it`"o�' t tii should
i jai t�>�ar�, r,�t�di ti+s�s
tt Otis sif e�, t� s��ial n4K*S'SGr,- tQ
lied 4s
it
is of tt�i�c zoA# 4rrlit�+�R
t v the ► � -
P �i�s the n+s4+�"
pa�r�+�i ear, ° q"�1 t
r to 4oti el1� a eidts. t s #ugtfi�r'
told ► t of the too' r
r ¢o d tl t t "tis in a to�'d3 a with the
to
exercised in W*i4too "to te�tia�tiiioris,
fitri ito
ry
iop violME
4� Attic
ions
notice
tfia�i solelt f t sibIt for �.
titot 'lam Loa+9r 't1 Eacc+s�tiee: All -•
otem atto s to the director Of
*00i tea
hi> •tioee tie .
++ ►^
twol10 _
aiWASMY
to
VA
PAVInuo
on for : fro
y yk 0 '{oft} �p {�
1! •✓