F. A. CHASTAIN CONSTRUCTION, INC., ET AL., APPELLANTS,
v.
ELLIOT STANFORD ET AL., APPELLEES
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The court denied the appellee's motion to dismiss an appeal that was technically filed as an interlocutory appeal from an order denying a new trial. The court held that because the assignments of error addressed the final judgment itself, not merely the denial of the new trial motion, the appeal could proceed as an ordinary appeal from the final judgment.
The court held that the appeal should not be dismissed and should instead be treated as an ordinary appeal from the final judgment. The test for determining whether a notice of appeal is sufficiently directed to an appealable order is whether the adversary has been prejudiced, and examination of the record and assignments of error, rather than the face of the notice alone, is the proper method of analysis.
[1] An appeal will not be dismissed for being styled as an interlocutory appeal from a non-appealable order when the record reveals that the appeal seeks review of a final ju…
[2] The sufficiency of a notice of appeal should be tested by examining the record itself, not merely the face of the notice.
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Join FLexlaw to unlock all legal intelligence“in testing the sufficiency of the notice the record itself should be examined”
Establishes that appellate courts must look beyond the face of a notice of appeal to determine if it addresses an appealable order
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Join FLexlaw to unlock all legal intelligenceAppellant F.A. Chastain Construction filed what appeared to be an interlocutory appeal from an order denying a motion for new trial. Appellees moved t…
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ON MOTION TO DISMISS
Appellees’ motion to dismiss the appeal herein on the ground that the appellant has attempted to effect an interlocutory appeal from an order denying a new trial, contrary to the provision of Rule 4.2, Florida Appellate Rules, 32 F.S.A., is denied.
As contended by the appellees’ motion, the cited appellate rule does not contemplate interlocutory review of trial court orders denying a new trial on motion made. When taken at face value, appellees’ motion gives the initial impression of being well taken. On consideration of the papers constituting the present record before the court, however, it appears that more than a review of the order denying appellant’s motion for new trial is sought.
In State ex rel. Poe v. Allen, 196 So.2d 745 (Fla.1967), the Supreme Court had before it a notice of appeal which, on its face, indicated that it was addressed to an order denying a motion for new trial. In approving the District Court of Appeal’s refusal to dismiss the cause on the ground that the notice was addressed to a nonap-pealable order, the court stated that in testing the sufficiency of the notice the record itself should be examined. The court further held that the test of prejudice to the adversary is the essential and deciding test, citing Greyhound Corporation v. Carswell, 181 So.2d 638 (Fla.1966), p. 640.
As in the cases of State v. Allen, supra, and Greyhound Corporation v. Carswell, supra, we have examined the assignments of error in the case at bar and find that the second assignment is directed to an alleged error in the entry of the final judgment, and therefore conclude that the rule pronounced in State ex rel. Poe v. Allen, supra, precludes a dismissal of the instant appeal. There is little doubt that the notice of interlocutory appeal herein was inartfully drawn, yet artistry in the drafting of legal instruments seems no longer required under the more recent decisions of our Supreme Court.
Although this appeal is denominated as an interlocutory appeal, it seems, and.we so hold, that this matter should be treated as an ordinary appeal from the final judgment. Therefore, the parties hereto are ordered to proceed with this matter in accordance with the procedure provided in Rule 3.2, Florida Appellate Rules, et seq.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- State of Fla. ex rel. Alfred Gordon POE & Doris v. Poe, 196 So. 2d 745 (Fla. 1967)
- The Greyhound Corp. v. Carswell, 181 So. 2d 638 (Fla. 1966)