HARBOUR ASSURANCE COMPANY OF BERMUDA, LIMITED, APPELLANT,
v.
SUN BANK OF OCALA, AS GUARDIAN OF THE PROPERTY OF GEORGE E. STAHL, INCOMPETENT, DOROTHY TINDELL GILLEON, THE WIFE OF GEORGE E. STAHL, AND DONALD J. LAPORTE, APPELLEES
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Harbour Assurance appealed a trial court order dismissing its complaint with leave to amend. The Florida appellate court dismissed the appeal as not properly interlocutory, holding that a dismissal order permitting amendment is not appealable by the moving party until a final dispositive ruling is made on the merits.
A dismissal order with leave to amend is not an appealable interlocutory order, particularly when appealed by the movant who caused the dismissal. An appeal would be proper only after plaintiffs file an amended complaint, attempt service, Harbour moves to dismiss the amended complaint, and the trial court denies that motion.
[1] An order dismissing a complaint without prejudice, even with a statement of the trial court's views on jurisdiction and authorization to file an amended complaint, is not…
[2] A dismissal of a complaint with leave to amend does not present an appealable issue for the party who sought the dismissal.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the order is not an appealable interlocutory order, certainly not at least by Harb-our, the movant who caused the complaint to be dismissed”
Establishes the core holding that the moving party cannot appeal a dismissal with leave to amend.
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Join FLexlaw to unlock all legal intelligenceThe trial court issued an order dismissing Harbour's complaint and second amended complaint without prejudice, with leave to file another amended comp…
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PER CURIAM.
This is an interlocutory appeal filed by Harbour for review of an “Order Dismissing Complaint and ‘Second Amended Complaint’ Without Prejudice.” It is apparent that the order is not an appealable interlocutory order, certainly not at least by Harb-our, the movant who caused the complaint to be dismissed. The fact that the trial judge expressed the view in his order of dismissal that Harbour was amenable to long-arm jurisdiction pursuant to Section 626.906, Florida Statutes, and purported to authorize the plaintiff to file an amended complaint within twenty (20) days from his order and to cause it to be served upon Harbour in accordance with Section 626.907, Florida Statutes, does not render the order one which is the proper subject of review by this Court.
Regardless of the views which the trial judge may have expressed in the body of his order and the certainty with which the parties may have felt that such views would carry over to an anticipated new amended complaint, the fact is that the dispositive provisions of the order did nothing more than to dismiss the existing complaint with leave to file an amended complaint. There was, therefore, nothing for Harbour to appeal. Compare American Health Ass’n, Inc. v. Helprin, 357 So. 2d 204 (Fla. 4th DCA 1978), and Paradis v. Cicero, 167 So. 2d 248 (Fla. 2d DCA 1964).
If the plaintiffs file the amended complaint authorized by the order, and if plaintiffs purport to effect service of process, and if Harbour moves to dismiss that amended complaint, and if the court denies the motion, then Harbour may be able to appeal that order depending, of course, upon the nature of the order and the grounds relied upon in the motion and order. Accordingly, this appeal is dismissed.
ERVIN, WENTWORTH and NIMMONS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Am. Health Ass'n, Inc. v. Helprin, 357 So. 2d 204 (Fla. 4th DCA 1978)
- Roy F. Paradis and R. v. Hemphill, 167 So. 2d 248 (Fla. 2d DCA 1964)