De Loache v. De Loache

• Decision Date: 14 March 1973
• Docket Number: No. 41691,41691
• Citation: 274 So.2d 883
• Parties: Sara Margaret De LOACHE, Petitioner, v. Meaders Clifton De LOACHE, Respondent.
• Court: Florida Supreme Court

Page 883

274 So.2d 883

Sara Margaret De LOACHE, Petitioner, v. Meaders Clifton De LOACHE, Respondent.

No. 41691.

Supreme Court of Florida.

March 14, 1973.

Kates & Ress, North Miami, and Douglas S. Lambeth, Ft. Lauderdale, for petitioner.

Guion T. De Loach, Miami, for respondent.

DEKLE, Justice.

We have for review by conflict certiorari an order of the District Court of Appeal, Fourth District, dismissing an appeal, reported at 252 So.2d 874. At the outset we note that the district court's dismissal is a short-form order without any comment on the applicable principles of law. So, we must examine the 'record proper' to determine if a jurisdictional conflict exists. ¹ Our analysis in this regard discloses a conflict with various cases hereafter mentioned, thus invoking our jurisdiction under Article V, § 3(b)(3) (1973), F.S.A. We dispensed with oral argument as unnecessary. See F.A.R. Rule 3.10(e), 32 F.S.A.

As gleaned from the 'record proper' the salient facts are as follows: Petitioner-wife sued respondent-husband for divorce. ² The trial court entered a final judgment granting a divorce and subsequently issued two amended final judgments involving property rights and the restoration of the wife's maiden name. Both sides moved for rehearing and the court in a single order denied the petitions for rehearing and required the parties to comply with the final judgment of divorce. Twenty-six days later, the wife filed a notice of appeal from the order denying the petitions for rehearing and requiring compliance with the final judgment. ³ Copies of the notice of appeal were mailed to the husband's attorneys. In a separate court order the trial judge granted the wife until July 23, 1971, in which to file assignments of error and directions to the clerk. By motion to dismiss the appeal, the husband challenged the sufficiency of the notice of appeal stating that if failed to include the date, book and page number of the order appealed from; that the order sought to be reviewed is non-appealable; and that these deficiencies misled and prejudiced him.

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 out 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. Greyhound Corp. v. Carswell, 181 So.2d 638 (Fla.1968); State ex rel. Poe v. Allen, 196 So.2d 745 (Fla.1967); Eggers v. Narron, 238 So.2d 72 (Fla.1970); Brown v. Winn-Dixie Stores, Inc., 267 So.2d 78 (Fla.1972); and other related cases.

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. Upon an analysis of these documents we see that portions of the proposed assignments of error were directed to the final judgment of divorce and the first amended final judgment concerning certain property rights; the proposed directions to the clerk instructed the clerk to include the final judgment and the first amended final judgment in the record on appeal.

In this factual setting, we are confronted with the question of whether the notice of appeal is sufficient to support an appeal from those final judgments. Our review of the cases reveals that it is sufficient.

The criteria for determining the propriety of a notice of appeal were succinctly stated by that eminent jurist, E. Harris Drew, ret., in Greyhound Corp. v. Carswell, Supra: (p. 640 of 181 So.2d)

'Seaboard Air Line R. Co. v. Holt, supra, (Fla., 1955, 80 So.2d 354) decided in 1955, laid down one test for the sufficiency of a notice of appeal: a notice which gives to the adverse party and to the appellate court information by the use of which the order or judgment intended to be appealed can be discovered In the record with a reasonable degree of certainty is sufficient to withstand a motion to dismiss. State ex rel. Dedmon v. Carroll (Fla., 1963, 151 So.2d 5) reiterated the Seaboard test and added the test of whether or not the complaining party was misled or prejudiced by the mistake. On reconsideration of the problem, it seems to us that the test of prejudice to the adversary is the essential test, the deciding test. It encompasses within it that of Seaboard for if the...