author: PER CURIAM. SCHWARTZ, Judge. HUBBART, Chief Judge BASKIN, Judge

text:
    Robustiano PUGA and Medmold, Inc., Appellants, v. SUAVE SHOE CORP., Appellee.
    No. 81-187.
    District Court of Appeal of Florida, Third District.
    April 30, 1981.
    On Rehearing June 1, 1982.
    Fine, Jacobson, Block, Klein, Colan & Simon and Joseph H. Serota and Stuart L. Simon, Miami, for appellants.
    Greenberg, Traurig, Askew, Hoffman, Li-poff, Quentel & Wolff and David L. Ross and Kendall B. Coffey, Miami, for appellee.
   PER CURIAM.

Appeal dismissed.

Before HUBBART, C. J., and BARK-DULL, HENDRY, SCHWARTZ, NESBITT, BASKIN, DANIEL S. PEARSON, FERGUSON and JORGENSON, JJ.

ON MOTION FOR REHEARING EN BANC GRANTED

SCHWARTZ, Judge.

By a two-to-one majority, a panel of this court granted, without written opinion, the appellee Suave Shoe Corporation’s motion to dismiss this appeal solely because the notice of appeal stated that the appellants sought review of the order denying their post-trial motions, rather than the final judgments entered against them. Under Fla.R.App.P. 9.330(a), we have granted the appellants’ motion for rehearing en banc because this conclusion creates a lack of uniformity with this court’s decision in F. A. Chastain Construction, Inc. v. Stanford, 232 So.2d 421 (Fla. 3d DCA 1970). Upon that consideration, we hold that the motion to dismiss should be denied.

The appellants Puga and Medmold, Inc. were defendants below in an action for damages brought against them by Suave Shoe. The case was tried to a jury which, on November 10, 1980, returned verdicts against Puga and Medmold of $250,000 compensatory and $25,000 punitive damages each. The defendants’ timely-filed and appropriate motions for directed verdict and new trial were denied on December 30, 1980. On January 19,1981, final judgments were entered in Suave’s favor on the verdicts. Within the 30-day appeal period thereafter, on January 29, 1981, Puga and Medmold filed the notice of appeal on which this present controversy turns. It stated:

NOTICE IS HEREBY GIVEN that the Defendants, ROBUSTIANO PUGA and MEDMOLD, INC. seek to invoke the non-discretionary jurisdiction of the District Court of Appeal, Third District of Florida, for the review of the Order of this Court rendered on December 30, 1980 denying the Defendants’ Motion for a New Trial and Renewed Motion for Directed Verdict. The nature of this Order is a final Order in favor of the Plaintiff and against the Defendants.
All parties to this action are called upon to take notice of the entry’ of this appeal.

Suave then filed the motion to dismiss which is now before us. In support of that motion, the appellee correctly contends that the order denying the post-trial motions which was specifically stated in the notice is both non-final and non-appealable. Fla.R. App.P. 9.130(a)(4); e.g., Whigam v. Bornstein, 118 So.2d 252 (Fla. 3d DCA 1960). It is incorrect, however, in its claim that the obvious inadvertence in the notice’s reference to the wrong order should result in its motion being granted. To the contrary, in accordance with the welcome policy that appellate like other judicial proceedings should be determined on their merits, instead of upon irrelevant technicalities, our supreme court has determined — by both its decisions and its enactment of the governing rules of appellate procedure — that non-jurisdictional and non-prejudicial defects in the notice or other steps in the appellate process are not grounds for dismissal. E.g., Seaboard Air Line R. Co. v. Holt, 80 So.2d 354 (Fla.1955). Thus, the Advisory Committee and Court’s Commentary states that Fla.R.App.P. 9.040(h)

is intended to implement the decision in Williams v. State, 324 So.2d 74 (Fla.1975), where it was held that only the timely filing of the notice of appeal is jurisdictional. . .. [e.s.]

Similarly, the commentary on Fla.R.App.P. 9.110(d), which deals with the form of the notice of appeal, points out that

[t]he Advisory Committee intended that defects in the notice would not be jurisdictional or grounds for disposition unless the complaining party was substantially prejudiced.

Consistent with this approach, it has been repeatedly held on these very facts that a notice which improperly specifies a non-ap-pealable order denying post-trial motions is to be treated as correctly directed to the reviewable final judgment. DeLoache v. DeLoache, 274 So.2d 883 (Fla.1973); Eggers v. Narron, 238 So.2d 72 (Fla.1970); 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, supra; see Bay Area News, Inc. v. Poe, 364 So.2d 830 (Fla. 2d DCA 1978), cert. denied, 373 So.2d 456 (Fla. 1979); contra, Bennett v. Zager, 387 So.2d 382 (Fla. 3d DCA 1980), review denied, 392 So.2d 1371 (Fla.1980). These cases are controlling and require denial of the motion to dismiss.

Sauve attempts to distinguish most of these cases, specifically Poe, Greyhound, DeLoache, Eggers and Chastain, on the ground that in each of them the court looked to references in other appellate papers, usually the then-existing assignments of error and directions to the clerk, to deduce an “intent” to secure review of the final judgment. For a variety of reasons, this assertion is not well-taken.

First, the supposedly-required evidence of such an intent may be found in this ease on the face of the notice itself which, albeit erroneously, states that the order appealed from is an appealable “final order.” See Seaboard Air Line R. Co. v. Holt, supra. Moreover, the intent to appeal from the final judgments has now been unequivocally expressed in the appellants’ response to the motion to dismiss, including a specific application under Fla.R.App.P. 9.040(d) to amend the notice to that effect. In addition, we note that, with the abolition of assignments and directions by the new rules, the first extra-notice indication of the issues the appellants seek to raise would ordinarily not appear until the filing of their brief. Since it is certain that this “appellate paper” will show their desire to review and reverse the final judgments, the appellee’s position may be rejected on this basis alone.

In the larger, more fundamental jurisdictional sense, however, it is doubtful that any indication beyond the face of the notice as to the particular order in question is necessary to the viability of the appeal. This is because the pertinent issue is not whether the appellants “intended” to designate the correct order in the notice of appeal; but rather, as stated in Poe, supra, at 196 So.2d 746, whether there is “a clear intent to prosecute an effective appeal. “[e.s.]” Unless the appellants had no desire for appellate review of the substantial judgments against them and wished to throw away their filing fee, it is plain on the face of it that they possessed this intent. Under the present circumstances, in which the only appealable orders are the existing final judgments — and the ones stated in the notice are not appealable at all — the only way in which the intent to appeal, that is, to secure appellate review, may be effectuated is to treat the notice as referring to those judgments. Put somewhat differently, so long as a notice is (a) timely filed in the correct court — thus satisfying the only discernible jurisdictional prerequisites, (b) has sufficient information to identify the appealing and opposing parties and (c) states a desire to appeal, it must be deemed directed to the reviewable order, so that that desire may be satisfied. This view is in full accord with the essential basis of the supreme court’s decision in Poe that

[t]he significant factors fully delineated in the earlier cited opinions and present in the case sub judice are proper identification of the litigation in the notice, a clear intent to prosecute an effective appeal, specification of errors reviewable only upon appeal from the final judgment, presentation of a record sustaining such an appeal, and the absence of any record basis for genuine prejudice as a result of the defective notice....
This rule, as heretofore noted, accords with the nature of the constitutionally guaranteed right of appeal under Article V, Sec. 5(3), Fla.Const., F.S.A., and is supported by well-reasoned cases construing appellate laws and procedures in other jurisdictions:
‘Where the appeal is erroneously taken from the order denying the motion, rather than from the judgment, the sound course undoubtedly is to treat this technical error as harmless, and to consider the appeal as if it were from the judgment. * * * ’
subject to the qualification that a party cannot by such designations alter the appeal time from the final judgment or otherwise prejudice accrued rights of his adversary, the decided tendency appears to be to adopt ‘the more liberal rule that, where it is obvious that the overriding intent was effectively to appeal, we are justified in treating the appeal as from the final judgment.’

196 So.2d 746.

Finally, as in each of the cited cases, it is apparent that the appellee has suffered no cognizable prejudice whatever as a result of the error in the notice of appeal. The only argument it even asserts in this respect is, as we understand it, that it did not cross-appeal adverse rulings below because of its belief that the notice was ineffective. But there is no reason why it could not have filed a protective cross-appeal while still, and not inconsistently, maintaining its position that the primary appeal should be dismissed. More significantly, it has not even been harmed by the failure to take that course. Because the time for filing a notice of cross-appeal is not jurisdictional, it is free to do so even now. City of Hialeah v. Martinez, 402 So.2d 602, 603, n.4 (Fla. 3d DCA 1981), and cases cited.

For these reasons, the panel order of dismissal is vacated and the motion to dismiss the appeal is denied.

Motion to dismiss denied.

HUBBART, Chief Judge

(concurring)

I concur in the court’s decision to rehear this cause en banc under Fla.R.App.P. 9.330(a), although I think the panel’s order of dismissal more properly creates an in-tradistrict conflict with Rosen v. Hunter, 224 So.2d 371 (Fla. 3d DCA 1969). I also concur in the court’s decision to deny the appellee’s motion to dismiss the instant appeal, although I would do so on a much narrower legal ground than that stated in the court’s opinion herein.

I

I would treat the instant notice of appeal, on its face, as an appeal directed to the underlying final judgment herein. It seems to me that the subject notice of appeal, although technically defective, gives sufficient notice to the appellee and the court of an intent to appeal from the final judgment, as, clearly, the subject post-trial motions and order thereon were directed to the entry of the underlying final judgment. An appeal from such a post-trial order is, necessarily, an attack on the underlying final judgment and demonstrably indicates, without more, an intent to appeal from the final judgment. I, therefore, see no point in searching the record beyond the notice of appeal in order to discover this all too obvious intent.

This result is, without question, compelled by the eminently sensible rule of law approved in State ex rel. Poe v. Allen, 196 So.2d 745 (Fla.1967). In that case, the Florida Supreme Court, speaking through Mr. Justice Drew, announced the following, albeit in dicta, as the applicable rule of law here:

“This rule, as heretofore noted, accords with the nature of the constitutionally guaranteed right of appeal under Article V, Sec. 5(3), Fla.Const., F.S.A., and is supported by well-reasoned cases construing appellate laws and procedures in other jurisdictions: Where the appeal is erroneously taken from the order denying the motion, rather than from the judgment, the sound course undoubtedly is to treat this technical error as harmless, and to consider the appeal as if it were from the judgment. * * * ’ [Vol. 3, p. 347, Barron & Holtzoff, Fed.Prac. & Proc., Sec. 1302.1]

subject to the qualification that a party cannot by such designations alter the appeal time from the final judgment or otherwise prejudice accrued rights of his adversary, the decided tendency appears to be to adopt ‘the more liberal rule that, where it is obvious that the overriding intent was effectively to appeal, we are justified in treating the appeal as from the final judgment.’ [United States v. Stromberg, 5th Cir. 1955, 227 F.2d 903. Vol. 6A, Moore’s Federal Practice, Sec. 59.15]. Under a statute authorizing, as in Florida, an appeal only from a final judgment, the Missouri Court states:

‘ * * * The appeal and notice should be from the final judgment and not from the action of the trial court in refusing to grant a new trial. However, our appellate courts have been most liberal in construing the appeal statutes and where there is actually an attempt in good faith to appeal from a final judgment, to sustain the appeal rather than to dismiss it for any inadequacies of the notice. * * * ’ [Hulen v. Amer. Oil Co., Mo.App.1962, 360 S.W.2d 726; Clark v. Dubbs, Mo.App.1962, 360 S.W.2d 288.]” [emphasis added]. Id. at 746-47.

This rule, in turn, has been explicitly followed in White v. State, 267 So.2d 360 (Fla. 2d DCA 1972), and implicitly followed in Bowen v. Bowen, 352 So.2d 166 (Fla. 1st DCA 1977), dismissed, 360 So.2d 1247 (Fla. 1980), and Rosen v. Hunter, 224 So.2d 371 (Fla. 3d DCA 1969), so as to treat, as here, a notice of appeal taken from an order denying a post-trial motion for rehearing as demonstrating sufficient intent, on its face, to appeal from the underlying order or judgment against which the motion for rehearing was directed. Application of this rule of law to the instant case requires us, without more, to deny the appellee’s motion to dismiss and treat the notice of appeal herein as directed to the underlying final judgment, which notice was timely filed within thirty (30) days of the rendition of said judgment. Compare Bay Area News, Inc. v. Poe, 364 So.2d 830 (Fla. 2d DCA 1978), cert. denied, 373 So.2d 456 (Fla.1979).

I fully recognize, as the appellee contends, that the Florida Supreme Court has in past cases on this subject found an intent to appeal from the underlying final judgment based on various appellate papers filed in the cause, none of which appear in the instant case. De Loache v. De Loache, 274 So.2d 883 (Fla.1973) (assignment of error and directions to the clerk); Eggers v. Narron, 238 So.2d 72 (Fla.1970) (a superse-deas bond, assignments of error and directions to the clerk); State ex rel. Poe v. Allen, 196 So.2d 745 (Fla.1967) (assignments of error and directions to the clerk); Greyhound Corp. v. Carswell, 181 So.2d 638 (Fla.1966) (directions to the clerk); accord F. A. Chastain Construction, Inc. v. Stanford, 232 So.2d 421 (Fla. 3d DCA 1970) (assignments of error). I do not read these cases, however, to require the presence of such papers as a sine qua non to salvage the notice of appeal, where, as here, an intent to appeal from the final judgment can be discerned from the face of the notice itself. Moreover, Mr. Justice Drew’s dicta in State ex rel. Poe v. Allen, 196 So.2d 745 (Fla.1967), as quoted above, makes it painfully obvious that a notice of appeal, similar to the one in the instant case, demonstrates on its face a sufficient intent to appeal from the underlying final judgment.

I also recognize that the Florida Supreme Court in an early line of cases held that an appeal was automatically subject to dismissal where the notice of appeal identified an order denying post-trial motions for new trial or rehearing as the sole order appealed from. Koch v. State Road Dept., 106 So.2d 426 (Fla.1958); Proctor v. Kennedy, 64 So.2d 567 (Fla.1953); Douglas-Guardian Warehouse Corp. v. Insurance Agents Finance Corp., 46 So.2d 169 (Fla.1950); Hen derson v. Stevens, 157 Fla. 641, 26 So.2d 656 (1946). These cases, however, have been expressly disapproved by the Florida Supreme Court and no longer represent good law. State ex rel. Poe v. Allen, 196 So.2d 745, 746 (Fla.1967).

Based on the above, I, therefore, entirely agree with the court in its opinion herein that the controlling rule of law in this ease is, as stated, that “a notice [of appeal] which improperly specifies a non-appealable order denying post-trial motions [for new trial or directed verdict] is to be treated as correctly directed to the reviewable final judgment.” [court’s opinion, 679], I also agree that the appellee has in no way been prejudiced by this technical error in the notice of appeal, [court’s opinion, 682]. It follows, then, that the appellee’s motion to dismiss should, on this ground alone, be denied; indeed the court herein concedes as much by concluding that the above-stated rule of law emerging from the cases is “controlling” here and, without more, “require^] denial of the motion to dismiss.” [court’s opinion, 679].

II

I cannot agree, however, with the balance of the court’s opinion herein. Besides being unnecessary to the decision in this case, and, therefore, obiter dicta, the balance of the court’s opinion, as I see it, contains sweeping pronouncements which are unsupported by the existing Florida law on the subject.

A

First, the court suggests that an intent to appeal from the final judgment herein as required by Florida law may be properly established by such unorthodox “record” items as (a) appellant’s response to appel-lee’s motion to dismiss, (b) appellant’s motion to amend the notice of appeal, and (c) appellant’s yet-to-be-filed main brief, [court’s opinion, 679-680]. This suggestion, unsupported by any ease law, virtually eliminates the established requirement that an intent to appeal from the final judgment must affirmatively appear in the record in cases of this nature, as, by this suggestion, all errors or omissions in the notice of appeal as to the identity of the order being appealed could always be cured later by filing the above pleadings and brief; for all practical purposes, no appeal could ever be dismissed where the notice of appeal was directed solely to a non-appeala-ble trial court order. Indeed, the court makes it plain that it would be premature to dismiss an appeal as having been taken from a non-appealable order until the appellant files his main brief where, presumably, he may cure any errors in the notice of appeal, [court’s opinion, 679-680 and n.8]. I know of no authority in this state, and the court cites none, to support such a novel result.

B

Secondly, the court suggests that it is no longer necessary, in any event, for a notice of appeal to identify in any way the order or orders being appealed and that an intent to appeal a particular trial court order need not affirmatively appear in the notice of appeal or anywhere else in the record — it being legally sufficient if the notice of appeal “is (a) timely filed in the correct court — thus satisfying the only discernable jurisdictional prerequisites — (b) has sufficient information to identify the appealing and opposing parties and (c) states a desire to appeal.” [court’s opinion, 680]; by filing such a notice, says the court, along with a filing fee, the appellant has demonstrated a sufficient intent to appeal something ap-pealable which the appellate court must give effect to. Indeed, the court opines, albeit in dicta, that “it may be that a timely notice [of appeal] with the correct style which says merely ‘the plaintiff appeals’ would be sufficient.” [court’s opinion, 681 n.14]. By these pronouncements, the court, in my view, plainly reads out of Fla.R. App.P. 9.110(d) any requirement that the notice of appeal identify “the date of rendition and the nature of the order to be reviewed,” as well as “the case number in the lower tribunal” and “the court to which the appeal is taken;” it also amends the approved form for notices of appeal, as provided by Fla.R.App.P. 9.900(a), so as to eliminate the above-stated references therein. Substantial compliance with these provisions, as required by Fla.R.App.P. 9.110(d), is no longer required, as no compliance whatever with same is ever necessary. I must reject such suggested wholesale changes in the Florida Appellate Rules as being beyond the power of this court to accomplish.

Beyond that, I think the court, by the above pronouncements, plainly walks away from the well-established Florida law that a notice of appeal, together with the supporting record, must reveal an intent to appeal from a particular appealable trial court order — as opposed to a generalized intent to appeal something upon the filing of a notice of appeal and the payment of a filing fee. The Florida Supreme Court in Milar Galleries, Inc. v. Miller, 349 So.2d 170, 171 (Fla. 1977), states the applicable law here as follows:

“The purpose of a notice of appeal is to disclose to an adverse party and the reviewing court that an appeal from an appealable order, judgment or decree of the trial court is intended. Seaboard Air Line R.R. v. Holt, 80 So.2d 354 (Fla.1955). As long as parties have received that notice and have not been prejudiced by any deficiencies or ambiguities in the notice of appeal, the dismissal of such an appeal is inconsistent with the concept of appellate review and with proper administration of justice. See Robbins v. Cipes, 181 So.2d 521 (Fla.1966).”

Now, we are told that the appellant need only file, in the proper court, a notice of appeal with the correct style and parties which expresses a desire to appeal and that is sufficient; he need not demonstrate in any way an intent to appeal from a particular appealable trial court order. I must reject such suggestions as wholly unsupported by, and, indeed, contrary to, the existing Florida law on the subject.

C

Finally, it should be noted that sound policy reasons support the established Florida law on this subject which further militate, in my view, against the court’s sweeping suggested changes therein. Granted, we have long since passed the day when hypertechnical pleading at either the trial or the appellate level should determine the outcome of a given cause; in particular, the constitutional right to appeal in this state is surely a precious right and should not be abrogated by outmoded rules of pleading, the violation of which, in no sense, prejudice or mislead any party to the appeal. For this reason, it is clear, and quite properly so, that an appeal should not be dismissed because of deficiencies in the notice of appeal as to the identity of the order or orders being appealed where the notice itself, as here, or the supporting record otherwise adequately apprises the appellee of what the order under review is so that the appel-lee has in no way been misled or prejudiced by the technical errors in the notice of appeal. Greyhound Corp. v. Carswell, 181 So.2d 638 (Fla.1966). Indeed, an entire body of law has grown up around what a notice of appeal must contain, which requires only that the notice be in “substantial compliance” with the form prescribed for same by the Florida Supreme Court [Fla.R.App.P. 9.900(a) ] and need not be hy-pertechnically accurate. See e.g., Seaboard Air Line R.R. v. Holt, 80 So.2d 354 (Fla. 1955); Fla.R.App.P. 9.110(d).

Still, this liberal policy of construing notices of appeal and supporting records so as to protect the appellant's constitutional right of appeal has its limits. Some concept of notice to the appellee as to the nature of the order appealed from must be preserved so that the appellee may determine at a relatively early stage of the appeal what the order under review is. If the said order is not appealable, he surely should know, early on, so that he does not waste his valuable time and resources defending an appeal which the court has no jurisdiction to entertain and will promptly dismiss upon proper motion. Litigation is time consuming and expensive; a rule which helps ease that burden on litigants is certainly a necessity in this day and age and not a senseless hypertechnicality. There is also a strong institutional reason for preserving some such concept of early record notice as to the identity of the order under review so that the appellate court itself does not waste its valuable time and resources — already strained by the weight of ever-increasing case loads — in processing appeals which it has no jurisdiction to entertain.

Beyond that, the efficient progress of an appeal is, concededly, sidetracked and slowed down unless the appellee and the appellate court are given adequate notice early in the appeal as to the nature of the order appealed so that a proper record may be promptly prepared and a cross appeal, if appropriate, filed. Indeed, the entire time track for the processing of an appeal is significantly different depending on whether the order under review is a final or non-final order, see e.g., Fla.R.App.P. 9.110, 9.130, 9.200, which again compels early record notice of the nature of the order being appealed. Appeals are time consuming and frustrating enough without adding additional burdens which unnecessarily complicate and prolong the process.

The existing law, then, strikes a proper balance, in my view, between protecting the appellant’s constitutional right to appeal while at the same time giving the appellee and the court adequate early record notice of the order under review. I would, therefore, be extremely reluctant to turn an about-face on this established law — as I think the court suggests we do — even if we had the power to do so, which we decidedly do not. Hoffman v. Jones, 280 So.2d 431 (Fla.1973).

With these reservations, I concur in the order and opinion of the court herein.

BASKIN, Judge

(concurring).

Although I concur in the result reached by the majority in this case, I believe the remainder of the opinion sponsors drastic changes in the Florida Rules of Appellate Procedure and thereby exceeds this court’s authority. Hoffman v. Jones, 280 So.2d 431 (Fla.1973). Not only has this court eliminated the procedural requirements pertaining to the notice of appeal, it has also curtailed the right to file motions to dismiss appeals which it calls premature.

Case law cited in the majority opinion and in Judge Hubbart’s concurring opinion recognizes that inadvertent errors, which are a part of a good-faith attempt to comply with the rules, are generally forgiven. My disagreement with the majority stems from the fact that it equates good-faith attempts at compliance with total disregard for the rules. While there may be a need to revise the rules to conform with case law, in my opinion, the majority’s method of revising the rules on a piecemeal basis is both improvident and unauthorized.

      . Two other defendants were originally also involved.

      . See Puga v. Suave Shoe Corp., 374 So.2d 552 (Fla. 3d DCA 1979).

      . The only jurisdictional aspects of the notice appear to be timeliness and filing in the lower tribunal. Lampkin-Asam v. District Court of Appeal, 364 So.2d 469 (Fla.1978).

      . It plainly makes no difference that the orders in these cases were entered, as is usually true, after rather than before the final judgment.

      .It is inconsequential that the papers which expressed this position were filed after the expiration of the 30-day appeal period. This is shown by the fact that, in the earlier cases, the courts regularly considered the contents of appellate papers which, under the “old rules,” need not have been filed until 10 days after the notice of appeal. See Rule 3.5(a), Fla.App. Rules (1962).

      . Rule 9.040(d) provides:
      (d) Amendment. At any time in the interest of justice, the court may permit any part of the proceeding to be amended so that it may be disposed of on the merits. In the absence of amendment, the court may disregard any procedural error or defect that does not adversely affect the substantial rights of the parties.
      The same considerations which lead to the conclusion that the original notice was not totally defective also require that the motion to amend be granted or treated as if it had been. Thus, the commentary to the rule states:
      Section (d) is the appellate procedure counterpart of the harmless error statute, Section 59.041, Florida Statutes (1975). It incorporates the concept contained in former Rule 3.2(c), which provided that deficiencies in the form or substance of a notice of appeal were not grounds for dismissal, absent a clear showing that the adversary had been misled or prejudiced. Amendments should be liberally allowed under this rule, including pleadings in the lower tribunal, where it would not result in irremediable prejudice, [e.s.]

      . This is true if, as was the case here, no statement of the judicial acts to be reviewed is filed under Fla.R.App.P. 9.200(a)(2).

      . See DeLoache v. DeLoache, supra, at 884-85:
      The Fourth District granted the motion dismissing the appeal two days before the assignments of error and the directions to the clerk were due and later denied rehearing in another short-form order. The action by the district court in failing to wait until the assignments of error and the directions to the clerk were either filed or were late creates a constitutional conflict with our prior cases placing a great reliance upon the record including assignments of error and the directions to the clerk in determining the sufficiency of a notice of appeal...
      Despite the Fourth District’s precipitous action in dismissing the appeal prior to the due date for the assignments of error and the directions to the clerk, the proposed assignments of error and directions to the clerk submitted to the district court by the wife on rehearing must be considered.

      . The cases in which there were extrinsic indications of an intent to review the final judgment, and which therefore did not reach this issue, are not inconsistent with the view that the appeal may stand even when they are not present. See, Bay Area News, Inc. v. Poe, supra.

      . As in all these cases, it is quite obvious that they, however mistakenly, intended otherwise.

      . F. A. Chastain Construction, Inc. v. Stanford, supra, is an extreme example of our willingness to effectuate the ultimate desire to appeal notwithstanding manifest mistakes of counsel. There, the appellant filed a notice of interlocutory appeal directed to the denial of its post-trial motions, thus clearly indicating that it did desire, although erroneously, to review only that interlocutory order. Nevertheless, because it was the only procedural posture in which the appeal could be heard, we treated the proceeding as a plenary appeal directed to the final judgment.

      . Of course, under Williams v. State, 324 So.2d 74 (Fla. 1975), this may include a filing before the final judgment and thus 'before it is even possible specifically to refer to it in the notice. In this regard, the cases in which, pursuant to Williams, a notice of appeal which designates a non-appealable, non-final order has been held in abeyance and then directed to a subsequently-entered final judgment lend additional support to our holding here. Gries Investment Co. v. Chelton, 388 So.2d 1281, 1282-83 (Fla. 3d DCA 1980), and cases cited.

      . While we need not specifically so decide in this case, and surely do not recommend the practice, it may be that a timely notice with the correct style which says merely “the plaintiff appeals” would be sufficient. Certainly, designating no order is at least no worse than explicitly designating the wrong one.

      14. This quotation from United States v. Strom-berg, 227 F.2d 903, 904 (5th Cir. 1955) was recently reiterated by the fifth circuit in resolving the present issue as we do:
      The other contention of Nails by Jannee, Inc. is that Kay-See should not be permitted to appeal because it did not properly designate the judgment appealed from. Instead of appealing from the judgment against Nails by Jannee, Inc., or the judgment against Kay-See Dental Manufacturing Co., Kay-See appealed from the denial of its motion for judgment notwithstanding the verdict or in the alternative for a new trial. Thus, Nails by Jannee, Inc. argues, Kay-See has failed to meet the requirements of F.R.A.P. 3(c) con-ceming the required contents of a notice of appeal, and its appeal should be dismissed.

        The Supreme Court rejected a similar argument in State Farm Mutual Auto Insurance Co. v. Palmer, 350 U.S. 944, 76 S.Ct. 321, 100 L.Ed. 823 (1956). There, in a per curiam opinion, it reversed the decision of the 9th Circuit at 225 F.2d 876 (1955) which dismissed the appeal because appellant, in its notice of appeal, had designated the trial court’s denial of its motion for new trial and to amend findings, rather than the judgment against it.

      In a later case, the Supreme Court reversed the dismissal of an appeal by the First Circuit Court of Appeals where appellant had not specified in his notice of appeal that the appeal was from a judgment dismissing the complaint as well as from the order denying certain motions. Foman v. Davis, 371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). The court stated, ‘It is too late in the day and entirely contrary to the spirit of the Federal Rules of Civil Procedure for decisions on the merits to be avoided on the basis of such mere technicalities.’ Id. at 181, 83 S.Ct. at 230.
      Similarly, in this circuit, it is well settled that an appeal is not lost if a mistake is made in designating the judgment appealed from where it is clear that the ‘overriding intent was effectively to appeal.’ U. S. v. Strom-berg, 227 F.2d 903, 904 (5th Cir. 1955). See Comfort Trane Air Conditioning v. Trane Co., 592 F.2d 1373 (5th Cir. 1979). [e.s.]

        Kicklighter v. Nails by Jannee, Inc., 616 F.2d 734, 738-39, n.l (5th Cir. 1980); accord, cases collected, 9 Moore’s Federal Practice § 203.18 (2d ed. 1980).

      . We are cynical enough to suspect that what really happened is that Suave made a deliberate decision not to cross-appeal lest its doing so undercut its claim that it was misled to its disadvantage by the error in the notice. It need hardly be said that the failure of this attempted “gotcha!” tactic, much less the disappointment of Suave’s hopes that its opponents’ irrelevant mistake would result in a failure of the appeal, does not constitute the “actual prejudice,” Poe, supra, at 196 So.2d 746, which is required to justify dismissal.

      . Bennett v. Zager, supra, is overruled.

      . In Rosen v. Hunter, supra, this court, without any reference to the supporting record, treated, on its face, a notice of appeal from an order denying a motion for rehearing as properly directed to the underlying order setting aside a foreclosure sale. That result seems inconsistent with the panel decision herein which, in effect, refused to treat, on its face, a notice of appeal from an order denying motions for new trial and directed verdict as properly directed to the underlying final judgment.

      . Although I was a member of the panel which initially dismissed the instant appeal, I have since concluded, based upon further reflection and study of this matter, that the subject dismissal was improvidently ordered. Also, I agree with the court that the contrary decision of Bennett v. Zager, 387 So.2d 382 (Fla. 3d DCA), pet. for review denied, 392 So.2d 1371 (Fla.1980), should be overruled.

      . As an aside, I do not read cases such as Greyhound Corp. v. Carswell, 181 So.2d 638 (Fla. 1966), and its progeny to require the appel-lee to make some showing of irreparable injury before he can successfully complain that he has been prejudiced by errors in the notice of appeal. Indeed, such a showing would surely be near impossible as the court herein convincingly demonstrates in rejecting the appellee’s claim of prejudice as to its alleged loss of cross appeal rights, [court’s opinion, 682]. It is, however, a sufficient showing of prejudice under the above cases, as I read them, if the appellee, unlike this case, is able to show that he did not receive sufficient notice as to the identity of the order or orders being appealed.

      . Fla.R.App.P. 9.110(d) provides as follows: “Notice of Appeal. The notice of appeal shall be substantially in the form prescribed by Rule 9.900(a). The caption shall contain the name of the lower tribunal, the name and designation of at least one party on each side, and the case number in the lower tribunal. The notice shall contain the name of the court to which the appeal is taken, the date of rendition and the nature of the order to be reviewed.”

      . Fla.R.App.P. 9.900(a) provides as follows:
      IN THE [NAME OF LOWER TRIBUNAL WHOSE ORDER IS TO BE REVIEWED]
      CASE NO. . ) ) Defendant, Appellant, ) )
      v. ) NOTICE OF APPEAL ) . ) ) Plaintiff, Appellee. ) - )
      NOTICE IS GIVEN that .. Defendant, Appellant, appeals to the [Name of court that has appellate jurisdiction], the Order of this Court rendered [See Rule 9.020(g)], 19. The nature of the order is a final order [state nature of the order].

        /$/

      Counsel for Appellant
      [Address]
      [Telephone Number]
      Fla.R.App.P. 9.110(d), in turn, specifically provides that the notice of appeal “shall be substantially in the form prescribed by Rule 9.900(a).” [emphasis added].


source: Caselaw Access Project

author: SHAW, Judge. PER CURIAM.

license: Public Domain

text:
    The CITY OF PENSACOLA, a municipal corporation, Appellant, v. CAPITAL REALTY HOLDING COMPANY, INC., Appellee.
    No. AF-45.
    District Court of Appeal of Florida, First District.
    March 29, 1982.
    Rehearing Denied July 20, 1982.

      John W. Fleming, Pensacola, for appellant.
    Charles J. Kahn, Jr. and Richard P. War-field of Levin, Warfield, Middlebrooks, Ma-bie & Magie, P. A., Pensacola, for appellee.
   SHAW, Judge.

This controversy originated as a collateral issue in an eminent domain proceeding in which the trial court found that Capital Realty was the owner of an accreted strip of land. The order was appealed, and this court found that there was insufficient evidence to support Capital’s claim that the City’s record title was defeated by the doctrine of accretion. The order was reversed and remanded for proceedings consistent with the appellate court’s opinion. Upon remand the City moved for the trial court to enter an order in accordance with the mandate of the appellate court and objected to the taking of additional evidence. The motion was denied, and the case was heard by the court sitting without a jury. The trial court found that the land in dispute was submerged beneath a navigable waterway when the City acquired title, and that through natural accretion, the waterway was changed or actually closed. Capital Realty, or its predecessor in title, was the upland owner at the time of the accretion. The court concluded that under the common law doctrine of accretion, the appellee, as upland owner, was entitled to the land.

The following points on appeal are presented for our consideration:

1. Whether the trial court erred in failing to follow the mandate of this court in City of Pensacola v. Capital Realty Holding Company, Inc., 388 So.2d 642 (1st DCA 1981).
2. Whether the trial court misapplied the common law doctrine of natural accretions.
3. Whether the trial court erred by determining that all of the accreted land was owned by Capital Realty.
4. Whether the trial court erred by determining that Capital Realty owns land neither described in its deed nor accreted to the upland owned by Capital Realty-

It is well settled that upon reversal and remand with general directions for further proceedings, a trial judge is vested with broad discretion in handling or directing the course of the cause thereafter. Lu-com v. Potter, 131 So.2d 724 (Fla.1961). We find that the taking of additional evidence upon remand was not an abuse of discretion.

As to Point IV, the parties agree that any presently submerged lands located within the legal description set forth in the order are still held by the City in trust for the public. Capital Realty makes no claim to these submerged lands. The order accordingly is REVERSED as to this issue and REMANDED to the trial judge with directions that his final judgment be modified to reflect the City’s ownership in the submerged lots. The order is otherwise AFFIRMED as to all points.

McCORD and ERVIN, JJ., concur.

ON MOTION FOR REHEARING

PER CURIAM.

By motion for rehearing, appellant, City of Pensacola, contends that our decision here is contrary to the rule announced by the Supreme Court in City of Miami v. St. Joe Paper Company, 364 So.2d 439 (Fla.1978), stating that the Marketable Record Title Act (MRTA) deviates from the common law and that, by applying the common law doctrine of natural accretion in this case and thereby divesting appellant of its record title dating from 1903 to the lands in question, we have cast doubt upon the continued viability of MRTA. Since we did not discuss this contention of appellant in our opinion, we deem it advisable to now do so.

The operative facts relating to this are (1) the State of Florida conveyed the disputed submerged lands to Pensacola in 1903; (2) Capital Realty (and its predecessors in title) own the adjacent uplands; (3) since 1903, portions of the submerged lands, including the lands involved in this suit, have been transformed into uplands by the process of accretion. The two basic questions with which we are concerned here are: (1) Does the MRTA apply to these submerged lands? (2) Does the MRTA supplant the common law doctrine of accretion?

As to the first question, we conclude that the MRTA does apply to perfect title in submerged lands under certain factual circumstances but not under the circumstances of this case. Chapter 712 purports to extinguish all estates, interests, claims or charges on any property owned by “(a)ny person having the legal capacity to own land in the state, who, alone or together with his predecessors in title, has been vested with any estate in land of record for 30 years or more.” § 712.02, Fla.Stat. Such a person shall have marketable record title clear of any claims other than seven exceptions expressly set forth in Section 712.03. None of these exceptions are applicable to the question of whether a private owner’s title to what had been sovereignty lands is excepted from the operation of the act. Accordingly, we conclude that such title can be perfected under the act but only as against “all estates, interests, claims or charges whatsoever the existence of which depends upon any act, title transaction, event or omission that occurred prior to the effective date of the root of title.” (Emphasis supplied.) § 712.04, Fla.Stat. The accretion of this case occurred after the effective date of Pensacola’s root of title from the State of Florida.

As to whether the MRTA supplants the common law doctrine of accretion, we note that a statute designed to change the common law must be in clear and unequivocable terms, for the presumption is that no change in the common law is intended unless the statute is explicit in that regard. Carlile v. Game and Fresh Water Fish Commission, 354 So.2d 362 (Fla.1977). The Supreme Court in Marshall v. Hollywood, 236 So.2d 114, 119 (Fla.1970), said: “The chief purpose of the (MRTA) is to extinguish stale claims and ancient defects against the title to real property.” Subject to the exceptions contained in Section 712.03, the act clears all estates, interests, claims or changes, the existence of which depended upon any act, title transaction, event or omission that occurred prior to the effective date of the root of title. As previously stated, the accretion of this case occurred after the effective date of Pensacola’s root of title from the State of Florida. Since the accretion does not involve a defect, the existence of which depends upon an act, title transaction, event or omission, that occurred prior to the effective date of Pensacola’s root of title from the State of Florida, the MRTA does not supplant the doctrine of accretion.

The Supreme Court’s statement in City of Miami v. St. Joe Paper Company, supra, that the MRTA deviates from the common law has no applicability to this case. That pronouncement does not mean that the MRTA deviates from all common law doctrines. Its only reference is in relation to such doctrines as may conflict with the curative operation of the MRTA.

The motion for rehearing is DENIED.

McCORD, ERVIN and SHAW, JJ., concur.

      . “Root of title” means any title transaction purporting to create or transfer the estate claimed by any person and which is the last title transaction to have been recorded at least 30 years prior to the time when marketability is being determined. The effective date of the root of title is the date on which it was recorded. § 712.01(2), Fla.Stat.


author: PER CURIAM. PER CURIAM.

text:
    Thomas Harridd COLEMAN, Appellant, v. STATE of Florida, Appellee.
    No. 79-2588.
    District Court of Appeal of Florida, Fourth District.
    May 12, 1982.
    Rehearing Denied Aug. 18, 1982.
    Richard L. Jorandby, Public Defender, and Richard B. Greene, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, Ondi-na Felipe and Trela J. White, Asst. Attys. Gen., West Palm Beach, for appellee.
   PER CURIAM.

This is an appeal from a judgment entered pursuant to a plea of nolo contendere adjudicating appellant guilty of kidnapping and sentencing him to life imprisonment. On appeal appellant asserts that the trial court erred in denying his motions to suppress and discharge. Appellant further asserts that, should we find no error in the trial court’s denial of the motion to discharge, we must nevertheless remand and allow him the opportunity to withdraw his plea.

Appellant entered his plea of nolo conten-dere shortly after the Supreme Court’s decision in Brown v. State, 376 So.2d 382 (Fla.1979), which held that a defendant could not, absent circumstances not present here, reserve the right to appeal an order denying a motion to suppress a confession upon a plea of nolo contendere. The Brown decision was not discussed at the time appellant changed his plea and the transcript of the hearing reflects that everyone was proceeding on the basis that the defendant could reserve the right to appeal the denial of the motion to suppress his confession. Indeed, the trial court specifically advised the appellant that he was giving up the right to appeal all matters except the denial of his motion to suppress and motion for discharge. Since appellant’s plea was predicated on the assurance to him that he could appeal both issues, we do not believe it would be appropriate to rule on the discharge issue until appellant has had an opportunity to withdraw his plea based upon the invalidity of the agreement reserving his right to appeal the suppression issue.

Accordingly, this cause is hereby remanded to the trial court for the purpose of allowing the appellant to elect whether or not to withdraw his plea and have all of the charges filed against him reinstated, or to maintain his plea and proceed on appeal solely on the issue of his entitlement to discharge under the speedy trial rule.

LETTS, C. J., and ANSTEAD and HERSEY, JJ., concur.

ON REHEARING

PER CURIAM.

In its petition for rehearing the appellee asks that we reconsider our decision on the authority of Hardison v. State, 385 So.2d 738 (Fla. 2d DCA 1980). Although the plea colloquy is not set out in Hardison, we acknowledge that our ruling appears to conflict with the holding therein. Having acknowledged this apparent conflict, we deny the petition for rehearing.

LETTS, C. J., and ANSTEAD and HERSEY, JJ., concur.


author: RYDER, Judge. GRIMES, Acting Chief Judge,

text:
    Flora E. WIGGINS, Appellant, v. J. J. WIGGINS, Appellee.
    No. 81-2304.
    District Court of Appeal of Florida, Second District.
    May 26, 1982.
    Rehearing Denied Aug. 3, 1982.
    George 0. Kluttz of Pavese, Shields, Garner, Haverfield, Kluttz & Cottrell, Fort Myers, for appellant.
    John M. Hathaway, Punta Gorda, for ap-pellee.
   RYDER, Judge.

In this interlocutory appeal, Flora Wiggins challenges the order of the circuit court taxing costs and denying attorney’s fees. The facts are simple and undisputed. J. J. Wiggins filed a dissolution petition, but six months later filed a notice of voluntary dismissal. When Flora Wiggins sought an order awarding costs and attorney’s fees, the court awarded costs but claimed it had lost jurisdiction to award fees when Mr. Wiggins filed his voluntary dismissal.

It is generally true that a voluntary dismissal divests the trial court of jurisdiction for purposes of awarding attorney’s fees. Campbell v. Maze, 339 So.2d 202 (Fla.1976). In Randle-Eastern Ambulance Service v. Vasta, 360 So.2d 68 (Fla.1978), the court held that once a party files a notice of voluntary dismissal, the trial court cannot grant relief from such dismissal. Id. at 69. The court mentions attorney’s fees as one of many litigation costs that cannot be recovered following a voluntary dismissal and appears to announce a strict jurisdictional rule regarding the overall effect of a voluntary dismissal. However, that portion of the opinion relating to attorney’s fees was not necessary to the decision in that case and recent cases arising, like the case sub judlce, in the context of marriage dissolution have adopted a more equitable solution.

In Bolton v. Bolton, 412 So.2d 72 (Fla. 2d DCA, 1982), we held squarely that in a dissolution proceeding the trial court retains jurisdiction to award attorney’s fees even after the filing of a notice of voluntary dismissal. See Irwin v. Marko, 408 So.2d 677 (Fla. 5th DCA 1982); Knott v. Knott, 395 So.2d 1196 (Fla. 3d DCA 1981); Hadlock v. Hadlock, 137 So.2d 873 (Fla. 2d DCA 1962). That being the case, the trial court erred when it refused to consider the merits of the motion for attorney’s fees.

Accordingly, we REVERSE and REMAND this case to the trial court for further proceedings.

OTT, J., concurs.

GRIMES, Acting C. J., concurs specially with opinion.

GRIMES, Acting Chief Judge,

concurring specially.

In Randle-Eastern Ambulance Service v. Vasta, 360 So.2d 68 (Fla.1978), the supreme court said:

Our rules prevent several filings and dismissals against a defendant for the same claim, and they provide authority for defendants to recoup their court costs when a voluntary dismissal has been taken. There is no recompense, however, for a defendant’s inconvenience, his attorney’s fees, or the instability to his daily affairs which are caused by a plaintiff’s self-aborted lawsuit. Nor is there any recompense for the cost and inconvenience to the general public through the plaintiff’s precipitous or improvident use of judicial resources.

360 So.2d at 69 (footnotes omitted).

In the context of the paragraph, I believe the court was referring to the ordinary instance in which a defendant who has had to retain an attorney to defend himself cannot recoup his fees. I do not interpret Randle as announcing a rule that upon a voluntary dismissal, the defendant cannot recover attorney’s fees in a case in which a statute specifically authorizes it.


author: BARKDULL, Judge.

text:
    BRICKELL BAY CLUB, INC., etc., et al., Appellants, v. Pansy K. USSERY, as Personal Representative of the Estate of Aubrey W. Ussery, deceased, and Alvin Ussery d/b/a Ussery’s Cement, Appellees. Pansy K. USSERY, as Personal Representative of the Estate of Aubrey W. Ussery, deceased, and Alvin Ussery d/b/a Ussery’s Cement, Appellants, v. BRICKELL BAY CLUB, INC., etc., et al., Appellees.
    Nos. 80-1441, 81-424 and 81-837.
    District Court of Appeal of Florida, Third District.
    June 15, 1982.
    Rehearing Denied Aug. 18, 1982.

      Hall & Hauser and Richard F. O’Brien, III, Miami, for Brickell Bay Club, Inc.
    Walton, Lantaff, Schroeder & Carson.and N. James Turner and George W. Chesrow and Randall W. Dillard and Kathleen O’Connor, Miami, for Pansy K. Ussery.
    Before BARKDULL and DANIEL S. PEARSON and FERGUSON, JJ.
   BARKDULL, Judge.

In 1973, Brickell Bay Club, Inc., as owner, was developing a condominium project in Dade County, Florida. The general contractor was Samuel Weintraub, Inc., d/b/a as Weintraub Construction Co. The general contractor employed Ussery Cement Finishing Company, which was a partnership of the Ussery brothers (one of whom is now deceased) to do certain of the concrete work on the project. On October 16,1975 Ussery filed a notice to owner and a mechanic’s lien. The lien was subsequently, prior to suit, transferred to bond pursuant to Section 713.24, Florida Statutes (1975). A foreclosure of lien action was commenced. At the final hearing the trial court permitted the claim of lien to be amended to set forth a different date as to the last day work was performed on the project. The trial court then entered a final judgment of foreclosure of mechanic’s lien, reserving the right to fix attorney’s fees and costs at a later hearing.

The owner appealed the final judgment of foreclosure in Case No. 80-1441. Subsequently, the trial court, upon various motions being filed, awarded attorney’s fees, interest and costs, and refused to increase the amount of the security bond. This ruling is the subject of appeal in Case No. 81-424. While this appeal was pending, Weintraub Construction Company, Inc. (not a party in the trial court) moved to clarify the order with respect to attorney’s fees and costs to show that it did not apply to it, alleging it was not formed until 1978, two years after the law suit began. The trial court granted this relief but went beyond the relief sought and vacated the award of attorney’s fees and costs as to Weintraub Construction Co. The plaintiffs then took an appeal from this order, which is filed under Case No. 81-837.

We affirm the order of the trial court permitting an amendment to the notice of lien, no evidence as to prejudice having been tendered by the owner. Florida New Deal Co. v. Crane Co., 142 Fla. 471, 194 So. 865 (1940); Rapidek Industries, Inc. v. Summit Ins. Co. of New York, 318 So.2d 425 (Fla. 3d DCA 1975); Adobe Brick and Supply Co. v. Centrex-Winston Corp., 270 So.2d 755 (Fla. 3d DCA 1972).

We affirm the entry of the final judgment of foreclosure of the mechanic’s lien and sustain the award of attorney’s fees. We do reverse so much of the order that vacated the award of attorney’s fees against Weintraub Construction Co., and reinstate the original judgment in this regard.

As to the failure to increase the security bond to which the lien was transferred, we reverse. At the time the lien was transferred to bond, the statute authorizing the transfer read as follows:

713.24 Transfer of liens to security.—
(1) Any lien claimed under part I of this chapter may be transferred, by any person having an interest in the real property upon which the lien is imposed or the contract under which the lien is claimed, from such real property to other security by either:
(a) Depositing in the clerk’s office a sum of money, or
(b) Filing in the clerk’s office a bond executed as surety by a surety insurer licensed to do business in this state, either to be in an amount equal to the amount demanded in such claim of lien plus interest thereon at 6 percent per year for 3 years plus $100 to apply on any court costs which may be taxed in any proceeding to enforce said lien. Such deposit or bond shall be conditioned to pay any judgment or decree which may be rendered for the satisfaction of the lien for which such claim of lien was recorded and costs not to exceed $100. Upon making such deposit or filing such bond the clerk shall make and record a certificate showing the transfer of the lien from the real property to the security and mail a copy thereof by registered or certified mail to the lienor named in the claim of lien so transferred at the address stated therein. Upon filing the certificate of transfer the real property shall thereupon be released from the lien claimed and such lien shall be transferred to said security. The clerk shall be entitled to a fee for making and serving the certificate in the sum of $2. Any number of liens may be transferred to one such security.

The statutes further provided that the bond could be increased. See: Section 713.24(3), Florida Statutes (1975), which reads as follows:

(3) Any party having an interest in such security or the property from which the lien was transferred may at any time, and any number of times, file a complaint in chancery in the circuit court of the county where such security is deposited for an order to require additional security, reduction of security, change or substitution of sureties, payment or discharge thereof or any other matter affecting said security.

All statutes in effect upon the date of the execution of a contract are a part of the contract. Florida Fruit Company v. Shakelford, 145 Fla. 216, 198 So. 841 (1940); 22 Fla.Jur., Mechanics’ Liens § 19 (1982 Supp.). The surety company, Continental Casualty Company, at the time it entered into the undertaking transferring the lien to bond was on notice that the amount of the bond could be increased. Counsel urges that the trial court was correct in denying the increase in bond, relying on Schonfeld v. Hughes Supply, Inc., 392 So.2d 324 (Fla. 1st DCA 1981). We find this case not to be controlling as it involved a request to increase a bond when the amount in question was still unliquidated. Tuttle/White Constructors, Inc. v. Hughes Supply, Inc., 371 So.2d 559 (Fla. 4th DCA 1979).

In the instant case, all amounts due were liquidated at the time the trial judge entered the order denying the motion to increase the bond, although it was apparent on the record that monies due the plaintiff exceeded the amount of the bond previously posted. Although the motion may have been premature when filed, it was timely when denied and the bond should have been increased to cover the total amount awarded. The lienor originally had a lien against a substantial asset, a multiple unit condominium development. The owner elected to transfer the lien to bond, the lienor was entitled to a bond sufficient to guaranty his payment the same as he would have been if the lien had not been transferred but remained an encumbrance against the real estate.

Therefore, for the reasons above stated the final judgment of foreclosure, which is the subject matter of Case No. 80-1441, is affirmed. The order awarding attorney’s fees, which is the subject matter of'Case No. 81-424, is affirmed. The order striking Weintraub Construction Co. which is under consideration in Case No. 81-837, is reversed and vacated. The order refusing to increase the bond, which is also under ré-view in Case No. 81 — 424, be and the same is hereby reversed with directions to the trial court to further consider the motion to increase bond and to enter an appropriate order thereon.

Affirmed in part; reversed in part, with directions.

      . The mechanic’s lien law of 1975 is applicable to this case.

      . The same record was used for all appeals, and the oral argument was consolidated and all three appeals are being disposed of by this opinion and decision.

      . It is recognized, that it might be possible in some instances that the real estate would-be worth less than the claim, but this possibility should not prevent a full recovery against the substituted collateral in those situations like the instant case.


author: DANIEL S. PEARSON, Judge. BASKIN, Judge

text:
    Elizabeth COLLIER, Appellant, v. DADE COUNTY, Florida and William T. Mixson, Appellees.
    No. 81-565.
    District Court of Appeal of Florida, Third District.
    June 22, 1982.
    As Amended on Denial of Rehearing Aug. 18, 1982.

      Bartel, Shuford & Dubitsky and Mark Kamilar, Miami, for appellant.
    Fowler, White, Burnett, Hurley, Banick & Strickroot and Henry Burnett, Carey, Dwyer, Cole, Selwood & Bernard and Michael C. Spring, Miami, for appellees.
    Before BASKIN, DANIEL S. PEARSON and JORGENSON, JJ.
   DANIEL S. PEARSON, Judge.

In 1956, Elizabeth Collier, a paying patient at Dade County-owned Kendall Hospital, underwent surgery. Twenty years later, she discovered that a hemostat had been left in her body during this surgery and, understandably, sued the County and the surgeon, Dr. Mixson. The trial judge entered summary judgment in favor of the defendants, holding that the defense of sovereign immunity was a bar to Collier’s action against the County and Mixson, who, the trial court found, operated under the County’s aegis.

Collier’s claims, while not discovered until 1976, are controlled by the law as it existed in 1956. Under the law as it then existed, the County, as we will hereafter demonstrate, was immune from suit; and even assuming, arguendo, that Mixson was an employee of the hospital acting within the scope of his official duty at the time of his alleged negligence, Mixson was not cloaked with the County’s immunity. Collier quite clearly had a special and direct interest in Mixson’s performance of his duty and has allegedly sustained a special damage. Just as clearly, Mixson’s duty to Collier was non-discretionary. Under these circumstances, Mixson is not immune. Rupp v. Bryant, 417 So.2d 1309 (Fla.1982). The summary judgment entered in Mix-son’s favor, otherwise unsupportable, is reversed.

The thrust of Collier’s argument against the summary judgment for the County is that, as of 1956, a paying patient in a hospital owned and operated by a county could recover damages against the county. She ingeniously suggests that because in 1956 one could argue that Suwannee County Hospital Corp. v. Golden, 56 So.2d 911 (Fla.1952), supported her position, she is therefore entitled to have the holding of Suwannee retroactively misinterpreted, notwithstanding that we now know from Circuit Court of Twelfth Judicial Circuit v. Department of Natural Resources, 339 So.2d 1113 (Fla.1976), that Suwannee, correctly interpreted, lends no such support to Collier’s position:

“In Suwannee County Hospital Corp. v. Golden, supra, a husband and wife sued the appellant, a non-profit corporation created by a special act setting up a county hospital district, to recover damages for injuries occasioned by the negligent application of hot water bottles to the wife while she was a patient in the defendant’s hospital. The Supreme Court held that the special act which immunized the hospital from liability for the negligent acts of its officers, agents and employees did not preclude recovery by an injured, paying patient. We read this decision as holding only that a public corporation whose functions are local rather than state-wide does not share the sovereign immunity of the state. The attempted statutory immunization of a local hospital district cannot be equated with a constitutional immunity from suit .... ” 339 So.2d at 1115 (emphasis supplied).

It is this “constitutional immunity from suit,” without regard to whether the county is engaged in a governmental or proprietary undertaking, that counties have historically and continually enjoyed. Keggin v. Hills-borough County, 71 Fla. 356, 71 So. 372 (1916); McPhee v. Dade County, 362 So.2d 74 (Fla. 3d DCA 1978); Jackson v. Palm Beach County, 360 So.2d 1 (Fla. 4th DCA 1978); Smith v. Metropolitan Dade County, 343 So.2d 653 (Fla. 3d DCA 1977); Schmauss v. Snoll, 245 So.2d 112 (Fla. 3d DCA 1971). As the Florida Supreme Court said in Keggin v. Hillsborough County:

“While a county may in some respects resemble a municipality in that both organizations deal with public interests, their differences are so great that the cases discussing the latter’s liability in damages for the negligent omission to perform a public duty, are not analogous to those in which a liability is sought to be imposed upon a county. The one feature which sufficiently distinguishes them is that the counties are under the constitution political divisions of the State, municipalities are not. The county under our constitution being a mere governmental agency through which many of the functions and powers of the State are exercised, (citation omitted). It therefore partakes of the immunity of the State from liability.” 71 Fla. at 360, 71 So. at 373.

Collier correctly reminds us that we held in Butts v. County of Dade, 178 So.2d 592 (Fla. 3d DCA 1965), that the county was not immune from suit while engaged in the propriety endeavor of operating its bus system. However, in light of the Florida Supreme Court’s condemnation of Butts in Circuit Court of Twelfth Judicial Circuit v. Department of Natural Resources, supra, continued reliance on Butts is hardly possible.

“Without expressly overruling the Butts decision, we question the wisdom of its apparent extension of the Hargrove [v. Town of Cocoa Beach, 96 So.2d 130 (Fla. 1957) ] rationale to the county level. Unlike a municipality, a county has no corporate fund or other proprietary holding. It has long been held that counties act as arms of the state. Thus a persuasive argument, and one which this Court has accepted previously, could be made for including counties in the Constitution’s protection of the state from legal liability. See Keggin v. Hillsborough County, 71 Fla. 356, 71 So. 372 (1916).” 339 So.2d at 1115-16.

Finally, as must already be apparent, it is of no significance that in Smith v. Duval County Welfare Board, 118 So.2d 98 (Fla. 1st DCA 1960), our sister court chose to distinguish Suwannee on the ground that Suwannee involved a paying patient and Smith a charity patient. That ready distinction does nothing to give Suwannee any greater meaning than that given it in Circuit Court of Twelfth Judicial Circuit v. Department of Natural Resources, supra.

Therefore, we hold that the County is immune from suit arising out of the alleged negligent operation in 1956 of a county-owned hospital and affirm the summary judgment entered in its favor.

Affirmed in part; reversed in part, and remanded.

BASKIN, Judge

(Concurring in part, dissenting in part).

Although I concur in reversal of the summary judgment entered in favor of Dr. Mixson, I disagree with both the reasoning and the result reached by the majority insofar as the County is concerned.

I dissent for two reasons. First, the inconsistent approach employed by the majority appears to me to be unjust. Although it recognizes that 1956 law applies to Mrs. Collier’s claims, the majority imposes the 1976 interpretation of Suwannee County Hospital Corp. v. Golden, 56 So.2d 911 (Fla.1952), contained in Circuit Court of Twelfth Judicial Circuit v. Department of Natural Resources, 339 So.2d 1113 (Fla.1976). If 1976 law applied, Mrs. Collier would also be entitled to benefit from statutes enacted many years after her injury which enabled the County to waive sovereign immunity. § 768.15, Fla.Stat. (1969). Appellant’s claim arose from her 1956 surgery, however, and she may not, therefore, invoke the County’s subsequent waiver of sovereign immunity. Consequently, she should not suffer the retroactive misinterpretation of Suwannee derived from the majority’s hindsight.

Second, in 1956, Suwannee supported recovery for paying patients. Smith v. Duval County Welfare Board, 118 So.2d 98 (Fla. 1st DCA 1960); cf. Butts v. County of Dade, 178 So.2d 592 (Fla. 3d DCA 1965) (county owned and operated transportation on which paying passengers ride is not “governmental” for purposes of sovereign immunity; such an individual is entitled to redress if injured through bus’s negligent operation).

In Suwannee, the supreme court characterized government functions as either proprietary or governmental. It concluded that a hospital serving paying patients operates in a proprietary capacity and may not divest its patients of constitutional rights by attempted statutory immunization. The court stated:

It is our view that one who enters a hospital of the type of appellant and pays for the professional services he receives is entitled to the same protection, and under our constitution, to the same redress for wrongs, that he would be entitled to had he had the same experience in a privately owned and operated hospital.

Id. at 913.

Sovereign immunity is a device to save the taxpayer money. The immunity is generally waived in conjunction with the purchase of insurance by the County. It is the taxpayer, however, who suffers when he is accorded a lower standard of care in an immune county agency and then deprived of redress in the courts. Mrs. Collier should be permitted to proceed against the County because it engaged in activities which were no different from those conducted by private businesses.

For these reasons, I would reverse both the summary judgment entered by the trial court in favor of the County and the summary judgment entered in favor of Dr. Mixson.

      . Earlier, a predecessor judge denied the motion for summary judgment. We reject Collier’s argument that this action precluded the successor judge from revisiting the earlier interlocutory ruling. Alabama Hotel Co. v. J. L. Mott Iron Works, 86 Fla. 608, 98 So. 825 (1924). See Agudo v. Agudo, 411 So.2d 249 (Fla. 3d DCA 1982). Compare Balfe v. Gulf Oil Company-Latin America, 279 So.2d 94 (Fla. 3d DCA 1973).

      . While Collier’s action is in contract as well as tort, the County’s immunity is equally applicable to the contract action. Gay v. Southern Builders, Inc., 66 So.2d 499 (Fla.1953).

      . Since Circuit Court of Twelfth Judicial Circuit v. Department of Natural Resources, supra, involved a state agency, not a county, making the Butts decision readily distinguishable, it was unnecessary for the Supreme Court to overrule Butts.

      . Repealed effective July 1, 1970, revived as to causes arising during the period between July 1, 1969 and July 1, 1970; section 768.151, Florida Statutes (1981).

      . Majority opinion at 696.

      . Butts v. County of Dade failed to receive the express approval of the supreme court in Circuit Court of Twelfth Judicial v. Dep’t. of Natural Resources. Nevertheless, the supreme court did not overrule Butts and merely questioned the wisdom of Butts. The majority’s characterization of the supreme court statement as “condemnation” exaggerates the result.

      .Recent decisions have refined the proprietary-governmental doctrine, classifying the governmental sphere into discretionary (planning) and ministerial (operational) functions. Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla.1979); Bellavance v. State, 390 So.2d 422 (Fla. 1st DCA 1980), pet. for rev. denied, 399 So.2d 1145 (Fla.1981).


author: LETTS, Chief Judge.

text:
    STATE of Florida, Appellant, v. Paul Gregory TAVIS, Appellee.
    No. 81-678.
    District Court of Appeal of Florida, Fourth District.
    June 23, 1982.
    Rehearing Denied Aug. 25, 1982.

      Jim Smith, Atty. Gen., Tallahassee,, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellant.
    Charles H. Vaughan, Fort Lauderdale, for appellee.
   LETTS, Chief Judge.

The issue is whether the following facts constituted probable cause to arrest without a warrant. The trial court thought not and granted the motion to suppress a confession. We reverse.

The officer testified that she was dispatched by radio to a coin shop where there had been an armed robbery with possibly two subjects involved. Upon arrival, she questioned a man (the actual perpetrator who was shot by the coin shop operator) being treated by paramedics. One paramedic handed the officer the injured man’s wallet. In it, she found a driver’s license and the Florida title to a motor vehicle which she then proceeded to search'for in the vicinity.

She soon found the car on the north side of the very same shopping center in which the coin shop was located. As she was checking on the tag (the vehicle identification number matched) and standing near the windshield, the defendant came up to the car with his keys in hand and started to enter. When asked his business, he first stated that the car was his and he was leaving. Upon further questioning, he changed his story and said it was a friend’s car and he was taking it to do a brake job. The officer then arrested the defendant, advised him of his rights and told him he was charged with robbery. He later confessed.

Section 901.15(3), Florida Statutes (1979) provides that a police officer may arrest a suspect without a warrant if he reasonably believes a felony has been committed and he reasonably believes the person to be arrested has committed it. State v. Keen, 384 So.2d 284 (Fla. 4th DCA 1980). We see no reason for extended analysis or discussion of this case. We simply announce that in our view the foregoing facts gave the officer reasonable grounds to believe that the man she arrested was participating in a felony.

REVERSED AND REMANDED.

HERSEY and GLICKSTEIN, JJ., concur.


author: PER CURIAM.

text:
    Brenda Kay ALDERMAN, Appellant, v. STATE of Florida, Appellee.
    No. 81-363.
    District Court of Appeal of Florida, Second District.
    June 25, 1982.
    Rehearing Denied Aug. 3, 1982.
    Thomas G. Murray, Miami, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Peggy A. Quince, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellant Alderman’s single general sentence for two separate offenses is improper, Dorfman v. State, 351 So.2d 954 (Fla.1977), and is therefore vacated and remanded to the trial court with directions to enter a separate sentence for each offense. Appellant need not be present at resentencing.

Appellant’s remaining arguments being without merit, the judgment and sentence is otherwise affirmed.

HOBSON, A. C. J., and BOARDMAN and RYDER, JJ., concur.


text:
    MILLS ELECTRICAL CONTRACTORS and Old Republic Insurance Company, Appellants, v. Richard A. MARTHENS and Division of Workers’ Compensation of the Department of Labor and Employment Security, Appellees.
    No. AG-427.
    District Court of Appeal of Florida, First District.
    June 28, 1982.
    Rehearing Denied Aug. 20, 1982.
    Charles Desmond Crowley, Fort Lauder-dale, for appellants.
    Richard A. Sicking of Kaplan, Sicking, Hessen, Sugarman, Rosenthal & De Castro, and Joseph C. Segor, Miami, for appellees.
   PER CURIAM.

The employer/carrier seeks to appeal an order of the deputy commissioner which decides only the issue of compensability in claimant’s favor without an award of benefits and reserves jurisdiction for all other future issues that may arise. The record indicates that the issue of compensability, to which the parties by stipulation limited the scope of hearing, is not the only outstanding point in controversy. We conclude that we are without jurisdiction to review the order appealed.

Rule 9.030(b)(1)(B), Florida Rules of Appellate Procedure, currently provides that the District Courts of Appeal shall review by appeal non-final orders of circuit courts as prescribed by Rule 9.130(a)(3). Formerly, the rule permitted review by appeal of specified non-final orders of lower tribunals. The term “lower tribunals” was interpreted to include hearings conducted before a deputy commissioner. Fidelity & Casualty Company v. Scott, 386 So.2d 315 (Fla. 1st DCA 1980). Since the aforementioned amendment to Rule 9.030(b)(1)(B), Florida Rules of Appellate Procedure, limits the applicability of Rule 9.130 to orders of circuit courts, this court is without jurisdiction to review by appeal non-final workers’ compensation orders. The Wash House v. Tucker, 413 So.2d 813 (Fla. 1st DCA, 1982); General Electric Company v. Hawkins, 413 So.2d 836 (Fla. 1st DCA, 1982).

Accordingly, the appeal is dismissed sua sponte without prejudice to review of the order in the event of an appeal from a final order awarding benefits.

BOOTH, WENTWORTH and WIGGIN-TON, JJ., concur.

      . Review of non-final workers’ compensation orders may now be sought by invoking this court’s certiorari jurisdiction. Rule 9.030(b)(2)(A), Florida Rules of Appellate Procedure; see United States Fidelity & Guaranty Company v. Sloan, 410 So.2d 549 (Fla. 1st DCA 1982).


text:
    Myra RABELL, Appellant, v. CITY OF MIAMI, a political subdivision of the State of Florida, Metropolitan Dade County, a political subdivision of the State of Florida; and Monty Trainer, individually, Appellees.
    No. 81-1629.
    District Court of Appeal of Florida, Third District.
    June 29, 1982.
    Rehearing Denied Aug. 18, 1982.
    High, Stack, Lazenby, Bender, Palahach & Lacasa and R. Scott Boundy, Coral Gables, for appellant.
    George F. Knox, Jr., City Atty. and Mick-ele S. Carter, Asst. City Atty., Robert A. Ginsburg, Dade County Atty. and Addison J. Meyers, Asst. County Atty., Ira B. Price and David Block, Miami, for appellees.
    Before NESBITT, FERGUSON and JOR-GENSON, JJ.
   PER CURIAM.

Affirmed. Evans v. Southern Holding Corp., 391 So .2d 231 (Fla. 3d DCA 1981); City of Miami v. Lewis, 112 So.2d 268 (Fla. 3d DCA 1959); Section 2-96.1, Code of Metropolitan Dade County.


author: COBB, Judge.

text:
    Robert R. CHAMBERS and Anna Chambers, his wife, Appellants, v. Omer SILER and Jacqueline Siler, his wife, Appellees.
    No. 81-1273.
    District Court of Appeal of Florida, Fifth District.
    June 30, 1982.
    Rehearing Denied July 29, 1982.

      Johnie A. McLeod of McLeod, McLeod & McLeod, Apopka, for appellants.
    George C. Kelley, P. A., Apopka, for ap-pellees.
   COBB, Judge.

The appellants, Mr. and Mrs. Chambers, appeal from a final judgment denying them specific performance of a contract for the sale of land located in Orange County, Florida.

The evidence at trial indicates that in early 1980, Mrs. Chambers, who lived in Arizona, contacted Mr. Siler, an Ohio resident, about selling his Florida property. Mrs. Chambers testified that she told Siler that she could not close until after July 2, 1980, when some certificates of deposit matured. She offered him a $1,000 deposit and the balance of $24,000 in cash at closing. Mrs. Chambers said she called Siler on the 5th of July and told him she was ready to complete the deal. She said she called him on several occasions, and that he told her not to worry.

Siler would not sign the contract without the $1,000 deposit; on September 30, 1980, the Chamberses’ attorney sent Siler $1,000 “subject to you mailing to me the signed contract for sale and purchase.” Siler accepted the money, and both he and his wife executed the contract. He returned the contract to the Chamberses, who executed it on November 3, 1980. This effectively negated the earlier dates shown in the original contract. There was no closing date set in the contract ultimately executed, hence a reasonable time was implied by law. Cohodas v. Russell, 289 So.2d 55, 57 (Fla. 2d DCA 1974). Siler also sent the Chamberses’ attorney a copy of the abstract for the property.

At trial, the Chamberses’ attorney introduced a warranty deed that had been executed in Ohio by Siler’s wife. The deed had been prepared by the Chamberses’ attorney, and named them grantees. At the end of the trial, the trial judge orally found for the Silers, and had their attorney draft a final order. This appeal ensued.

The trial court set forth several bases to support its conclusion that the contract was unenforceable. One of those bases was “that the Plaintiffs made an election of remedies on January 14, 1981 (under paragraph 4 of the Contract) by instructing their attorney to demand the return of the deposit, and that Defendants accepted said election and tendered the return of the deposit.”

The proof in this regard is that on January 14, 1981, the Chamberses’ attorney sent Siler a letter which said in relevant part:

This is also to advise you that if this transaction is not closed by February 1, 1981, my clients have instructed me that they will want all of their money back and that they will not proceed any further in this matter.

The question, then, is whether or not Siler tendered the $1,000 back to the attorney for the Chamberses prior to the filing of the specific performance suit on January 23, 1981. The evidence in this regard is that sometime between Siler’s receipt of the aforesaid letter and February 1, 1981, he went to the office of Attorney McLeod, who represented the Chamberses, and offered him the $1,000. The critical question is whether or not this tender preceded January 23, 1981, because if it did not, then the filing of the suit for specific performance operated to rescind the January 14th offer. The evidence, however, is that the response of McLeod to this tender was the statement to Siler that “he (McLeod) had to have the permission of his client first.” He made no mention of the offer having been rescinded by the filing of suit or otherwise, only that “he had to have an okay from the clients.” The logical inference from this evidence, and one obviously drawn by the trial judge, was that the tender was timely and constituted an acceptance by the sellers to the offer of rescission by the buyers. Therefore, there was a sufficient basis for the judgment denying specific performance.

AFFIRMED.

DAUKSCH, C. J., and FRANK D. UP-CHURCH, Jr., J., concur.

      . While the $1,000 deposit demanded by Siler was not even sent until September 30, 1980, the contract itself had a “time for acceptance” date, J.e., the date by which both parties were required to execute the contract for it to be effective, of June 27.


author: CAMPBELL, Judge.

text:
    HAVATAMPA CORPORATION, a Florida corporation, Appellant, v. McELVY, JENNEWEIN, STEFANY & HOWARD, ARCHITECTS/PLANNERS, INC., a Florida corporation; C. A. Fielland, Inc., a Florida corporation, Whatley Roofing & Sheet Metal, Inc., a Florida corporation; Commercial Roof Decks of Tampa, Inc., a Florida corporation; GAF Corporation, a Delaware corporation; W. R. Grace & Company, a Massachusetts corporation, Appellees.
    No. 81-1950.
    District Court of Appeal of Florida, Second District.
    June 30, 1982.
    Rehearing Denied Aug. 4, 1982.
    J. Bert Grandoff of Lawson, McWhirter & Grandoff, Tampa, for appellant.
    Jon W. Zeder and Jerold I. Budney of Paul & Thomson, Miami, for appellees.
   CAMPBELL, Judge.

Appellant brought this appeal from a summary judgment for appellees which held that appellant's cause of action was barred by the statute of limitations as set forth in section 95.11(3)(c), Florida Statutes (1979). The applicable portions of section 95.11(3)(c) provide as follows:

(3) WITHIN FOUR YEARS.—

(c) An action founded on the design, planning, or construction of an improvement to real property, with the time running from the date of actual possession by the owner, the date of abandonment of construction if not completed, or the date of completion or termination of the contract between the professional engineer, registered architect, or licensed contractor and his employer; except that when the action involves a latent defect, the time runs from the time the defect is discovered or should have been discovered with the exercise of due diligence....

Appellees were the architect, contractor, subcontractors, materialmen and bonding company utilized in the design and construction of a new manufacturing facility for appellant. Appellees specifically were involved in the design and construction of the 250,000 square foot roof of the new facility. The date of actual possession or occupancy by appellant of the new facility was April 10, 1972. On that date appellant knew that the roof was leaking and so notified each of the appellees. Thereafter numerous inspections of the leaking roof were made as well as various attempts to repair the leaks. None of the attempted repairs were successful. The roof leaked more or less continuously from the day of occupancy until the present time. It was not until April of 1976 that appellant hired an independent consultant to inspect the roof. In August of 1976 that consultant reported to appellant that the cause of the leaking roof was complex and that it was not reasonably possible for appellant to know the true nature or full extent of the specific nature of the defects that caused the roof leaks. Appellant, therefore, argues that since it could not be expected to know the specific nature of the defects, they were “latent” defects within the terms of the statute, and appellant’s cause of action did not accrue until it had knowledge or could reasonably be expected to have knowledge of the specific nature of the defects causing the leak. Appellant filed its complaint on August 26, 1976. We affirm the trial court’s holding that section 95.11(3)(c) bars appellant’s action.

On the day appellant took occupancy of the facility, it knew there was a problem with the roof. The problem has never been corrected. Appellant cannot rely on a lack of knowledge of the specific cause of the problem to protect it against expiration of the four year statute of limitations.

Appellant cites the recent case of School Board of Seminole County v. GAF Corp., 413 So.2d 1208 (Fla. 5th DCA 1982), as supportive of its position. We find that ease to be distinguishable on the facts. There, the majority of our colleagues on the fifth district seemed to base their holding on a finding that the School Board of Seminole County relied on assurances by the defendant architect, after the roof problems were discovered, that they were being handled and that permanent repairs would be made under his direction. In addition it appears that the leaks were not present on occupancy but developed during the first two years following completion of construction. We reject School Board of Seminole County to the extent that it can be construed to require knowledge of the specific nature of the defect causing an obvious problem before the statute of limitations commences to run. If that was the basis of the court’s holding in School Board of Seminole County, we would be required to concur with Judge Cowart’s dissenting opinion which more closely parallels this court’s view of the applicability of the statute of limitations. We also would not find it necessary to distinguish K/F Development & Investment Corp. v. Williamson Crane & Dozer Corp., 367 So.2d 1078 (Fla. 3d DCA), cert. denied, 378 So.2d 350 (Fla.1979), where the third district held that “people should exercise their rights within the limitations time set and that this time period should not be extended by good faith attempts to remedy a defect.” Id. at 1080. We consider this sound reasoning applicable to the circumstances of this case.

AFFIRMED.

BOARDMAN, A. C. J., and RYDER, J., concur.

      . The court below held, and the parties never disputed, that the applicable statute was section 95.11(3)(c), Florida Statutes (1979). We, therefore, have not considered whether an earlier version of that statute may or may not have been applicable.


text:
    ALLSTATE INSURANCE COMPANY, Appellant, v. Joseph PIATT, Patricia Piatt, and Kimberly Piatt, Appellees.
    No. 81-381.
    District Court of Appeal of Florida, Third District.
    July 6, 1982.
    Rehearing Denied Aug. 18, 1982.
    Spencer & Taylor and W. Thomas Spencer, Miami, for appellant.
    Preddy, Kutner & Hardy and Charles W. Rice, Miami, for appellees.
    Before SCHWARTZ, NESBITT and JOR-GENSON, JJ.
   PER CURIAM.

This is an appeal by Allstate Insurance Company from a summary judgment granted in favor of Joseph, Patricia and Kimberly Piatt. For the reasons which follow, we affirm in part and reverse in part.

Joseph, Patricia and their minor daughter, Kimberly, were passengers in a motor vehicle (owned and operated by Ronald Kul-peksa) which had a collision with another vehicle. The Piatts contended that the accident was caused by the negligence of Mr. Kulpeksa, who had no liability insurance. They, accordingly, sought uninsured motorist coverage from their own insurance company. Allstate insured Joseph Piatt under a single policy that covered two vehicles. The policy provided uninsured motorist coverage on both cars, with limits of liability of $50,000 each person, $100,000 each accident. The trial court, in granting summary judgment, concluded that coverage existed in the amount of $50,000 per plaintiff, for a total of $150,000. In our view, this was error.

The anti-stacking provision of Section 627.4132, Florida Statutes (1977), in effect at the time of these events, provides that “.. . if none of the insureds or named insured’s vehicles is involved in the accident, coverage is available only to the extent of coverage on any one of the vehicles with applicable coverage. Coverage on any other vehicles shall not be added to or stacked upon that coverage.” Aggregation of coverage, despite the anti-stacking statute, is permitted where multiple policies are involved. See, e.g., South Carolina Insurance Company v. Kokay, 398 So.2d 1355 (Fla.1981); United States Fidelity & Guaranty Company v. Curry, 395 So.2d 530 (Fla. 1980); Cox v. State Farm Automobile Insurance Company, 378 So.2d 330 (Fla. 2d DCA 1980); Lezcano v. Leatherby Insurance Company, 372 So.2d 214 (Fla. 4th DCA 1979). In the case sub judice, no qualifying exception exists since the Piatts paid premiums for only one policy and, therefore, Allstate’s liability is only to the extent of that policy and its limitation of $100,000 per accident.

On remand, the trial court is directed to limit Allstate’s coverage to the $100,000 per accident policy provision.

Allstate also assigns as error the trial court’s refusal to permit a set-off of PIP payment, made previously under this policy. There is no showing of duplication of benefits and, therefore, the trial court’s ruling was correct. Douglas v. Iowa National Mutual Insurance Company, 409 So.2d 1029 (Fla.1982); Hartford Accident and Indemnity Company v. Lackore, 408 So.2d 1040 (Fla.1982).

Affirmed in part, reversed in part and remanded for further proceedings.


text:
    Jerome KAUFMAN and Janet Kaufman, Appellants, v. STANDARD INVESTMENT CO., a foreign investment corporation d/b/a Carriage House Apartment, Hotel and Yacht Club; John J. Kilkenny; and Harvey Rosen, David Rosen, Lawrence Kates and Arthur Burdoff d/b/a under the fictitious names of Carriage House Associates and the Carriage House Apartment, Hotel and Yacht Club, Appellees.
    No. 81-963.
    District Court of Appeal of Florida, Third District.
    July 6, 1982.
    Rehearing Denied Aug. 18, 1982.
    Kramer & Golden, North Miami Beach, and Linda Dakis, Miami, for appellants.
    Young, Stern & Tannenbaum and Robert D. Hertzberg, North Miami Beach, for ap-pellees.
    Before BARKDULL, SCHWARTZ and BASKIN, JJ.
   PER CURIAM.

Affirmed. See Ritter's Hotel, Inc. v. Sidebothom, 142 Fla. 171, 194 So. 322 (1940); Kendall East Estates, Inc. v. Banks, 386 So.2d 1245 (Fla. 3d DCA 1980).