MICHAEL SCOTT CLEMENT, A MINOR, BY AND THROUGH HIS MOTHER AND NEXT FRIEND, EILEEN A. CLEMENT, AND EILEEN A. CLEMENT, INDIVIDUALLY, APPELLANTS,
v.
AZTEC SALES, INC., ET AL., APPELLEES
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The court held that Fla.Stat. § 59.04, F.S.A., is not superseded by F.A.R. Rule 4.2(a) because it does not conflict, and therefore remains valid.
[1] A statute providing for an appeal from an order granting a new trial is not superseded by rules governing interlocutory appeals if the statute does not conflict with thos…
[2] An order granting a new trial is not interlocutory in nature and confers a substantive right to appeal.
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Join FLexlaw to unlock all legal intelligenceAppellants obtained a jury verdict in a personal injury case, but the trial court granted a new trial on liability only. Appellants appealed this orde…
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ADKINS, Chief Justice.
This cause is before us on appeal from a decision of the District Court of Appeal, Fourth District, reported at 283 So. 2d 68 (Fla.App.4th, 1973). The District Court in its opinion passed upon the validity of Fla.Stat. § 59.04, F.S.A., giving this Court jurisdiction under Fla.Const., art. V, § 3(b)(1), F.S.A. Appellants, plaintiffs in the Broward County Circuit Court, secured a substantial jury verdict in a personal injury case. Appellees moved for a new trial, which was granted on the issue of liability only, whereupon appellants appealed to the District Court. That court granted appellees’ motion to dismiss, holding that Fla.Stat. § 59.04, F.S.A. (specifically providing for an appeal from an order granting new trial) was in conflict with Rule 4.2(a), F.A.R., 32 F.S.A. (which authorizes interlocutory appeals in only certain cases, not including orders granting new trials) and that, since Rule 1.4, F.A.R. provides that all statutes in conflict with those rules are superseded by them, Rule 4.2 governs and Fla.Stat. § 59.04, F.S.A., is invalid. We disagree and hereby reverse the holding of the District Court for the reasons set out below.
We have carefully considered this case, together with other case authority construing Fla.Stat. § 59.04, F.S.A., including Marley v. Saunders, 249 So. 2d 30 (Fla.1971); Seigel v. Solomon, 201 So. 2d 501 (Fla.App.3d, 1967), affirmed 207 So. 2d 79; and Means v. Douglas, 110 So. 2d 88 (Fla.App.1st, 1959). This Court has approved the holding that an order granting a new trial is a substantive right given by Fla.Stat. § 59.04, F.S.A., and is not interlocutory in nature. Seigel v. Solomon, supra. Further, it has been held that Fla.Stat. § 59.04, F.S.A., confers a right to appeal which creates an exception to the general rule that appeals at law lie only from final judgments. Means v. Douglas, supra. We conclude that this present appeal is not an interlocutory one and that Fla.Stat. § 59.04, F.S.A., does not conflict with Rule 4.2, F. A.R. We next note that Rule 1.4, F.A.R., reads in part as follows :
“From their effective date these rules shall supersede all conflicting rules and statutes. All statutes not superseded hereby or in conflict herewith shall remain in effect as rules promulgated by the Supreme Court.”
Therefore, we hold that, inasmuch as Fla. Stat. § 59.04, F.S.A., does not conflict with Rule 4.2(a), F.A.R., it is not superseded and that, pursuant to Rule 1.4, F.A.R., the statute has been adopted as a rule promulgated by this Court.
Accordingly, the opinion of the District Court of Appeal, Fourth District, is reversed and the cause remanded with directions that the District Court consider the appellants’ appeal on the merits.
It is so ordered.
ROBERTS, ERVIN, McCAIN and OVERTON, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (26 total)
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Amendments to the Florida Rules of Appellate Procedure, 685 So. 2d 773 (Fla. 1996)…law. This rule is intended to clarify the procedure for review of orders granting a new trial. Rules 9.130(a)(4) and 9.140(c)(1)(C) authorize the appeal of orders granting a motion for new trial. Those rules supersede Clement v. Aztec Sales, Inc., 297 So. 2d 1 (Fla.1974), and are consistent with the decision there. Under subdivision (h) of this rule the scope of review of the court is not necessarily limited to the order granting a new trial. The supreme court has held that “appeals taken from new trial o…
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State v. Chapman Levi Creighton, 469 So. 2d 735 (Fla. 1985)…e V still recognize the right of appeal as a matter of substantive law controllable by statute not only in criminal cases but in civil cases as well. See, e.g., State ex rel. Sebers v. McNulty, 326 So. 2d 17 (Fla.1975); Clement v. Aztec Sales, Inc., 297 So. 2d 1 (Fla.1974); State v. Matera, 378 So. 2d 1283 (Fla. 3d DCA 1979); State v. I.B., 366 So. 2d 186 (Fla. 1st DCA 1979); State v. Brown, [*740] 330 So. 2d 535 (Fla. 1st DCA 1976); see generally Fla.R.App.P. 9.140, Committee Note. This understanding is i…
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Bowen v. Willard, 340 So. 2d 110 (Fla. 1976)…to reconsider their continuing validity. Both have been superseded by the Florida Appellate Rules to the extent that they prevent the determination of issues which are ripe for appellate review in a unified appeal. In Clement v. Aztec Sales, Inc., 297 So. 2d 1 (Fla.1974), we held that appeals taken pursuant to Section 59.04 are not interlocutory appeals governed by Florida Appellate Rule 4.2, and that Section 59.04 had been adopted as a rule of appellate procedure pursuant to Florida Appellate Rule 1.4. I…1 / 2
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Means v. Douglas, 110 So. 2d 88 (Fla. 1st DCA 1959)
- Marley v. Thadius James Saunders & Dade Cnty., 249 So. 2d 30 (Fla. 1971)
- Clement v. Aztec Sales, Inc., 283 So. 2d 68 (Fla. 4th DCA 1973)
- Seigel v. Isidore Solomon, 201 So. 2d 501 (Fla. 3d DCA 1967)
- Gann v. State, 207 So. 2d 79 (Fla. 3d DCA 1968)
- Hagan v. Dade Cnty., 207 So. 2d 79 (Fla. 3d DCA 1968)