Opinion
No. 45395.
November 13, 1974.
Appeal from the Circuit Court, Broward County, Stewart F. LaMotte, J.
Patrick L. Bailey of Sullivan, Cochran, Ranaghan Bailey, Pompano Beach, for appellant.
Winifred Sheridan Smallwood and Geoffrey B. Dobson, Tallahassee, for appellees.
This cause is before us on appeal to review the decision of the District Court of Appeal, Fourth District, in Matthews v. Division of Administration, etc., et al., reported at 291 So.2d 681, wherein the District Court dismissed the appeal filed therein by Catherine Matthews upon the authority of Clement v. Aztec, 283 So.2d 68 (Fla.App. 4, 1973).
In Clement v. Aztec, supra, the District Court held Section 59.04, Florida Statutes, providing for an appeal from an order granting new trial to be invalid. However, this Court in Clement v. Aztec Sales, Inc., filed June, 1974, reported at 297 So.2d 1 (Fla. 1974), reversed the decision of the Fourth District Court of Appeal and found Section 59.04, Florida Statutes, to be valid. The instant decision of the District Court dismissing appellant's appeal in addition to holding Section 59.04, Florida Statutes, invalid directly conflicts with our recent decisions of Clement v. Aztec, 297 So.2d 1 (Fla. 1974); Gordon v. St. Mary's Hospital, Inc., 297 So.2d 4 (Fla. 1974); Bush v. Trans World Airlines, Inc., 297 So.2d 3 (Fla. 1974); Liberty Mutual Insurance Co. v. Nystrom, 297 So.2d 2 (Fla. 1974); Vadala, et al. v. Adams, et al., 297 So.2d 3 (Fla. 1974).
Appellee states that it is in full agreement with appellant that this Court's recent decision in Clement v. Aztec, supra, is controlling.
Pursuant to Rule 3.10, F.A.R., we have dispensed with oral argument and on the authority of our recent decision in Clement v. Aztec, supra, the decision of the District Court of Appeal dismissing appellant's appeal is reversed and the cause is remanded with directions that the District Court consider appellant's appeal on the merits.
It is so ordered.
ADKINS, C.J., and ERVIN, BOYD and McCAIN, JJ., concur.