Sloman v. Florida Power and Light Co.

Full title: ERIC BRUCE SLOMAN, APPELLANT, v. FLORIDA POWER AND LIGHT CO., APPELLEE

Court: District Court of Appeal of Florida, Fourth District

Date published: Apr 16, 1980

382 So. 2d 834 (Fla. Dist. Ct. App. 1980)

Opinion

No. 79-1632.

April 16, 1980.

Appeal from the Circuit Court, Broward County, W. Herbert Moriarty, J.

Alan S. Fishman of Robert D. Hurth, P.A., Fort Lauderdale, for appellant.

Peggy J. Tribbett and Paul R. Regensdorf of Fleming, O'Bryan Fleming, Fort Lauderdale, for appellee.

DOWNEY, Chief Judge.

Appellant seeks review by plenary appeal of a nonfinal order, the decretal part of which provides: "The defendant's motion for Summary Judgment is granted." Thereafter the order recites the reasons for the court's granting the motion. Although it seems clear that the circuit court intended the order to conclude the litigation, the order does not contain any magic words demonstrating finality. This jurisdictional defect was not noticed until this court began preparing the case for oral argument. Whereupon we requested counsel to obtain the entry of a final judgment. Counsel have complied with our request and a certified copy of said judgment has been filed here. Thus, we now acknowledge that jurisdiction over this cause is vested in this court.

Our authority for thus proceeding is Williams v. State, 324 So.2d 74 (Fla. 1975), in which the Supreme Court of Florida stated:

. . . we also hold that a notice of appeal which is prematurely filed shall not be subject to dismissal. Rather, such a notice of appeal shall exist in a state of limbo until the judgment in the respective civil or criminal case is rendered. 324 So.2d at 79.

The wisdom of that rule is obvious. Dismissal of this appeal, particularly at this juncture when the case is perfected and ready for oral argument, would seem to be a nonproductive waste of counsels' time and the parties' money. Upon dismissal appellant would simply proceed to have the circuit court enter a final judgment, and then appellant would perfect a new appeal. Instead, we chose to make use of the rule laid down in Williams, supra, and hold that the notice of appeal prematurely filed in this cause remained in limbo until the final judgment was rendered, whereupon the notice of appeal matured and jurisdiction vested in this court.

Upon consideration of the merits of the appeal we find no reversible error demonstrated. Accordingly, the judgment appealed from is affirmed.

AFFIRMED.

ANSTEAD and HERSEY, JJ., concur.