94-3631 | Fla. Dist. Ct. App. | Jan 3, 1996
Gerald KING, Appellant/Cross-Appellee,
v.
Gary ODLE, Appellee/Cross-Appellant.
District Court of Appeal of Florida, Fourth District.
Scott S. Warburton of Adams, Coogler, Watson & Merkel, P.A., West Palm Beach, for appellant/cross-appellee.
David L. Gorman of David L. Gorman, P.A., North Palm Beach, and James K. Green of James K. Green, P.A., West Palm Beach, for appellee/cross-appellant.
PER CURIAM.
This is an appeal from summary judgment on liability in favor of plaintiff, Gary Odle, against defendant, Gerald King. Although brought as a final appeal, we have jurisdiction to consider it as a non-final order determining liability in favor of a party seeking affirmative relief pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iv). Accordingly we redesignate this as a non-final appeal. Based on the issues presented in the briefs, we affirm the decision of the trial court.
The plaintiff also filed a cross-appeal from the order of the trial court denying his motion to amend his complaint to add a punitive damages claim. We do not have jurisdiction to consider the merits of this cross-appeal because this order is not an appealable non-final order. See Fla.R.App.P. 9.130; Webb Gen. Contracting, Inc. v. PDM Hydrostorage, Inc., 397 So. 2d 1058" date_filed="1981-05-13" court="Fla. Dist. Ct. App." case_name="Webb Gen. Contracting v. PDM HYDROSTORAGE, INCORP.">397 So. 2d 1058 (Fla. 3d DCA 1981), cited in Gwen Fearing Real Estate, Inc. v. Wilson, 430 So. 2d 589" date_filed="1983-05-04" court="Fla. Dist. Ct. App." case_name="Gwen Fearing Real Estate, Inc. v. Wilson">430 So. 2d 589 (Fla. 4th DCA 1983). Moreover, we cannot consider this under our certiorari jurisdiction because it was not brought in a timely fashion. See Fla.R.App.P. 9.100(f). Accordingly we dismiss the cross-appeal without prejudice to raising this issue at the time of any plenary appeal.
GUNTHER, C.J., and WARNER and PARIENTE, JJ., concur.