ROBERT E. LAWLER, M.D., APPELLANT,
v.
TYREE W. HARRIS, ETC., ET AL., APPELLEES
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The Fifth District Court of Appeal addresses whether an order granting a motion to dismiss with prejudice is a final, appealable order. The court holds it is not final and remands to the trial court to enter a proper final dismissal order with specificity regarding which defendants are dismissed.
An order granting a motion to dismiss with prejudice is not a final, appealable order. The court should temporarily relinquish jurisdiction to the trial court to allow entry of a proper final dismissal order that specifically names the defendants dismissed.
[1] An order granting a motion to dismiss with prejudice is not a final, appealable order.
[2] An order granting a motion to dismiss with prejudice is neither a judgment nor a final dismissal.
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Join FLexlaw to unlock all legal intelligence“an order granting a motion to dismiss with prejudice is neither a judgment nor a final dismissal, the words "with prejudice" actually adding nothing of legal consequence”
Establishes the court's holding that such orders lack finality
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Join FLexlaw to unlock all legal intelligenceDr. Robert E. Lawler appealed an order granting defendants' motion to dismiss his second amended complaint with prejudice. The trial court granted the…
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COBB, Judge.
This is an appeal from an order stating “that the Defendants’ Motion to Dismiss Plaintiffs Second Amended Complaint be, and the same is hereby granted, with prejudice.” The question of the finality of such an order for purposes of appeal has been considered by two other District Courts of Appeal, with conflicting results. The Fourth District has held it to be a final, appealable order. Cordani v. Roulis, 395 So. 2d 1276 (Fla. 4th DCA 1981); Segal v. Garrigues, 320 So. 2d 475 (Fla. 4th DCA 1975). The Third District, in an opinion by Judge Pearson, has held that an order granting a motion to dismiss with prejudice is neither a judgment nor a final dismissal, the words “with prejudice” actually adding nothing of legal consequence, and therefore such is not a final, appealable order. Gries Investment Co. v. Chelton, 388 So. 2d 1281 (Fla. 3d DCA 1980). Cf. Taylor v. Hartford Accident & Indemnity Co., 405 So. 2d 1070 (Fla. 5th DCA 1981).
We concur, in regard to the order’s lack of finality, with the Gries opinion. We also agree with its solution to the problem: a temporary relinquishment, of an inchoate jurisdiction rather than a non-productive and wasteful dismissal of the cause. Gries, 388 So. 2d at 1282 n.4. See also Dade County Classroom Teachers’ Association, Inc. v. State Board of Education, 269 So. 2d 657 (Fla. 1972); Clemons v. Flagler Hospital, Inc., 385 So. 2d 1134 (Fla. 5th DCA 1980); WBD, Inc. v. Howard Johnson Company, 382 So. 2d 1323 (Fla. 1st DCA 1980), review denied, 388 So. 2d 1114 (Fla. 1980); Sloman v. Florida Power & Light Company, 382 So. 2d 834 (Fla. 4th DCA 1980).
We also note for the benefit of the trial court and the parties that, in the event that a final order is entered by the trial court, it should state with particularity .the names of the defendants dismissed. There has been some confusion at the appellate level as to the proper appellees in this case, specifically as to the defendants Robert P. Oliver and Jane Oliver. Accordingly, we relinquish jurisdiction to the trial court and remand this cause for thirty (30) days so that the parties may procure an appropriate final order of dismissal.
RELINQUISHED AND REMANDED.
DAUKSCH, J., concurs.
COWART, J., dissents with opinion.
COWART, Judge,
dissenting:
I agree that an order merely granting a motion and dismissing a complaint, but not dismissing the action, is a non-appealable, non-final order and that the addition of the words “with prejudice” does not make it a final order of dismissal of the cause. The entire reporter system is replete with cases dismissed because, as here, the appellate court lacked jurisdiction to review a non-ap-pealable order, yet this court seizes on a few cases where, because of notions of kindness, helpfulness or convenience or for clarification where jurisdiction depended on the exact ground of dismissal, appellate courts have purportedly “relinquished” a non-existent jurisdiction to the trial court for entry of some anticipated appealable order. Such instances do not constitute precedent for the proposition that such action is the correct procedure when non-reviewable orders are attempted to be appealed.1 This court today holds up a few single instances or exceptions of yesterday as examples of doctrine and embalms their presumed principle to rank hereafter as precedent. There is no such thing as “inchoate jurisdiction” as to a particular case. The term in this instance is a bad combination of two good legal concepts. A court either has jurisdiction of a particular cause or it does not. This court has no jurisdiction in this case to “relinquish” or to send back (remand) to the trial court. Dismissal of the appeal is the only correct remedy and procedure when the review sought is of a non-reviewable order. . In each of the cases cited in the majority opinion, as in this case, the parties, assuming the appellate court had jurisdiction, earnestly briefed and argued the merits of the cause (i.e., whether the complaint stated a cause of action of whether there was a genuine issue of fact precluding summary judgment) and the court first noticed its lack of jurisdiction and improvised and initiated this alien procedure. This does not properly create precedent. Actually the cases cited by the majority trace through Sloman v. Florida Power & Light Co., 382 So. 2d 834 (Fla. 4th DCA 1980), to Williams v. State, 324 So. 2d 74 (Fla. 1975), a criminal case upholding a premature notice of appeal filed after judgment was orally pronounced but before it was “rendered," a case and concept far removed from the civil cases and circumstances to which it has led.
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State v. Saufley, 574 So. 2d 1207 (Fla. 5th DCA 1991)…So. 2d 557 (Fla. 5th DCA 1989). Arcangeli merely holds that an order to be appealable as a final order under Rule 9.030(b)(1)(A) must end the judicial labor in the cause and that an order merely granting a motion to dismiss, as in Lawler v. Harris, 418 So. 2d 1239 (Fla. 5th DCA 1982), (see, e.g., Gries Investment Co. v. Chelton, 388 So. 2d 1281 (Fla. 3d DCA 1980)) or an order merely granting a motion for a summary judgment, as in Arcangeli, are not final orders appealable under Rule 9.030(b)(1)(A). It is a mi…1 / 2
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Arcangeli v. Albertson's, Inc., 550 So. 2d 557 (Fla. 5th DCA 1989)…COBB, Judge. The dispositive issue in regard to this appeal is jurisdiction. The trial court entered an order merely granting the defendant Albertson’s motion for summary judgment. The order is not an appealable final judgment. Lawler v. Harris, 418 So. 2d 1239 (Fla. 5th DCA 1982); Danford v. City of Rockledge, 387 So. 2d 967 (Fla. 5th DCA 1980); and McCready v. Villas Apartments, 379 So. 2d 719 (Fla. 5th DCA 1980).1 In Lawler, confronted with the problem of an appealed order’s lack of finality, we adopte…
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LTC William L. Allen (RET) v. Fla. Dep't of Mil. Affairs, 576 So. 2d 971 (Fla. 5th DCA 1991)…g any words of actual dismissal. Allen filed his appeal to this court within thirty days of entry of the [*972] foregoing order. The issue which we address is whether that order constitutes a final order for appellate purposes. In Lawler v. Harris, 418 So. 2d 1239 (Fla. 5th DCA 1982), we agreed with the Third District in Gries Investment Company v. Chelton, 388 So. 2d 1281 (Fla. 3d DCA 1980), that an order merely granting a motion to dismiss is neither a judgment nor a final dismissal. Subsequently, in Arcang…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Williams v. State, 324 So. 2d 74 (Fla. 1975)
- Gries Inv. Co. v. Chelton, 388 So. 2d 1281 (Fla. 3d DCA 1980)
- W. B. D., Inc. v. Howard Johnson Co., 382 So. 2d 1323 (Fla. 1st DCA 1980)
- Clemons v. Flagler Hosp., Inc., 385 So. 2d 1134 (Fla. 5th DCA 1980)
- Sloman v. Fla. Power & Light Co., 382 So. 2d 834 (Fla. 4th DCA 1980)
- Segal v. Garrigues, 320 So. 2d 475 (Fla. 4th DCA 1975)
- Taylor v. Hartford Accident & Indem. Co., 405 So. 2d 1070 (Fla. 5th DCA 1981)
- Dade Cnty. Classroom Teachers' Ass'n, Inc. v. State Bd. OF Educ., 269 So. 2d 657 (Fla. 1972)
- Wright v. State, 395 So. 2d 1276 (Fla. 4th DCA 1981)
- Cordani v. Roulis, 395 So. 2d 1276 (Fla. 4th DCA 1981)