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Peters v. Menendez

District Court of Appeal of Florida, Third District
Aug 5, 1986
491 So. 2d 1300 (Fla. Dist. Ct. App. 1986)

Opinion

No. 86-630.

August 5, 1986.

Appeal of a non-final order from the Circuit Court of Dade County; Edward N. Moore, Judge.

Kozyak, Tropin, Throckmorton, Miami, Istook Associates, Oklahoma City, Okl., and Marte V. Singerman, Miami, for appellant.

Weintraub, Weintraub, Seiden, Press Orshan and George A. Buchmann, Miami, for appellee.

Before HUBBART and BASKIN and DANIEL S. PEARSON, JJ.


This is an appeal from an order entered in favor of the plaintiff Manuel J. Menendez on the issue of liability only in an action and counteraction for specific performance and other relief, after a trial thereon, with the issue of damages to be heard at a subsequent trial. We dismiss this appeal upon a holding that (a) the order under review is not a final judgment and is therefore not appealable to this court as a final judgment under Article V, Section 4(b)(1), Florida Constitution, and (b) the order under review is not an appealable non-final order under Fla.R.App.P. 9.130(a)(3)(C)(iv), and is therefore not appealable to this court under Article V, Section 4(b)(1), Florida Constitution, based on the controlling and indistinguishable authority of Dauer v. Freed, 444 So.2d 1012 (Fla. 3d DCA 1984).

Appeal dismissed.


I concur in dismissal. In my view, however, Dauer v. Freed, 444 So.2d 1012 (Fla. 3d DCA 1984), should not be cited as "controlling and indistinguishable." The Dauer majority based its dismissal of the appeal on a finding that the order appealed did not actually determine liability in favor of the party seeking affirmative relief, Fla.R. App.P. 9.130(a), but was, in reality, a post-judgment denial of renewed motions. It is the concurring opinion in Dauer that justifies today's dismissal.


Summaries of

Peters v. Menendez

District Court of Appeal of Florida, Third District
Aug 5, 1986
491 So. 2d 1300 (Fla. Dist. Ct. App. 1986)
Case details for

Peters v. Menendez

Case Details

Full title:GLORIA PETERS, ROY DALE POINDEXTER, AND GAIL G. MASE, D/B/A MASE…

Court:District Court of Appeal of Florida, Third District

Date published: Aug 5, 1986

Citations

491 So. 2d 1300 (Fla. Dist. Ct. App. 1986)

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