SUPER TRANSPORT INC AAA v. FLORIDA DEPARTMENT OF INSURANCE (2000)

District Court of Appeal of Florida,First District.

SUPER TRANSPORT, INC.; AAA Air Express of Miami, Inc.; Southeastern Staffing, Inc.; Ace Sprinkler Pump And Pool; Claridge House, Inc., Staffing Concepts, Inc., et al., Appellants, v. FLORIDA DEPARTMENT OF INSURANCE, as Receiver for Florida Employers Safety Association Self-Insurance Fund, Appellee.
Shirer & Associates of Florida, Inc., Appellant, v. Department of Insurance, Appellee.
Great American Employee Services, Inc., Great American Professional Employment, Ameristaff II, Inc., Ameristaff, Inc. and Industrial Leasing Affiliated Corps., Appellants, v. Department of Insurance, Appellee.
Florida Department of Insurance, as Receiver of the Florida Employers Safety Association Self-Insurers Fund and Florida Workers Compensation Insurance Guaranty Association, Inc., Appellants, v. Certain Fund Members of the Florida Employers Safety Association Self-Insurers Fund, Appellees.

Nos. 1D00-2699, 1D00-2705, 1D00-2708 and 1D00-3433.

Decided: November 28, 2000

Thomas J. Jones,Susan L. Kelsey and Merideth C. Nagel of Holland & Knight, Tallahassee; Eric B. Tilton of Tilton & Metzger, Tallahassee; F. Townsend Hawkes of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, Tallahassee; Guy Haggard, Wilbur Brewton, R. Dean Cannon, Jr., and Kenneth J. Plante of Gray, Harris & Robinson, Orlando; W. David Watkins of Watkins & Caleen, Tallahassee; Joseph C. Dominguez, Tampa; John R. Dunphy and Thomas R. McSwain, Tallahassee; William Berger of Greenspoon, Marder, Hirschfeld, Rafkin, Ross & Berger, Fort Lauderdale; John R. Dixon of Dixon, Lorenzen & Myers, Tampa; Kendall Coffey and Richard Lydecker of Coffey, Diaz & O'Naghten, Miami, for appellants. Thomas J. Korge and Christopher G. Korge of Korge & Korge, Coral Gables; C. Timothy Gray and Dennis Threadgill, Florida Department of Insurance, Division of Rehabilitation & Liquidation, Tallahassee, for appellees.

ON THE RECEIVER'S MOTION TO CONFIRM DISMISSAL

The issue presented is whether the filing of a notice of joinder within the time limit set forth in Florida Rule of Appellate Procedure 9.360 is jurisdictional. Under the facts of this case, we determine that it is not, and that dismissal of the appeal of the party filing that notice is not otherwise appropriate.

In this receivership matter, the trial court rendered an order of assessment on June 7, 2000. A timely notice of appeal was filed by Super Transport and other assessees on July 3, 2000. Super Transport filed an amended notice of appeal on July 14, 2000, serving additional parties, including Great American. Meanwhile, on July 10, Great American and other assessees filed a notice of appeal, but later Great American dismissed its appeal. On July 21, Great American filed a notice of joinder in Super Transport's appeal.

When Super Transport filed its initial brief, Great American was also listed as an appellant. The Receiver filed a motion to confirm the dismissal of Great American as an appellant, arguing that Great American dismissed its own appeal and that its notice of joinder in Super Transport's appeal was untimely because it was filed on July 21, more than 10 days after the July 3 original notice of appeal. Great American asserted that because Super Transport did not serve it with a copy of the original notice of appeal, the 10 day time period provided for joinder in rule 9.360 did not begin to run until the amended notice of appeal was filed on July 14, therefore its notice of joinder filed July 21 was timely.

Westfield Ins. Co. v. Sloan, 671 So.2d 881 (Fla. 5th DCA 1996), holds that a party which is subject to a final judgment can be added as an appellant to a notice of appeal by an amended notice after the time for filing has run. As in cases involving an untimely cross-appeal, the test applied in Westfield is whether the opposing party can show it was substantially prejudiced by the delay, but the delay in filing is not considered jurisdictional. We apply the same rule in the context of notices of joinder under rule 9.360, and because no demonstration of prejudice has been made by the Receiver, its motion to confirm dismissal is denied.

PER CURIAM.

ERVIN, MINER and KAHN, JJ., concur.

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