MARK SALASKY AND PATRICIA SALASKY, HIS WIFE, APPELLANTS,
v.
HUMANA HOSPITAL KISSIMMEE AUXILIARY, INC., ETC., APPELLEE
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The Salaskys appealed a dismissal of their complaint against Humana Hospital Kissimmee Auxiliary. The court held that an order actually dismissing a complaint is final and appealable even without explicit language stating dismissal "with prejudice," rejecting the hospital's argument that the order was not final.
An order which actually dismisses the complaint is final and appealable, regardless of whether it includes the phrase "with prejudice." The requirement that dismissals be made "with prejudice" to be final and appealable, as suggested in Berenyi, was merely dictum and inconsistent with prior precedent.
[1] An order that dismisses a complaint is a final, appealable order, even if it does not explicitly state dismissal "with prejudice."
[2] An order granting a motion to dismiss is not necessarily a final, appealable order.
Previewing 2 of 4 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“An order on a motion to dismiss may not be final, but an order which actually dismisses the complaint is.”
Establishes the key distinction that an actual dismissal order is final and appealable regardless of procedural language used
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Join FLexlaw to unlock all legal intelligenceThe Salaskys filed a complaint against Humana Hospital Kissimmee Auxiliary. The trial court entered an order dismissing the complaint based on the aut…
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COBB, Chief Judge.
This is an appeal from an order which states, in pertinent part:
ORDERED as follows: The complaint is dismissed on the authority of Crenshaw v. Sarasota County Public Hospital Board, 466 So. 2d 427 (Fla.2d DCA 1985).
Appellee has moved to dismiss the appeal because the order did not dismiss the complaint “with prejudice,” citing Berenyi v. Halifax Hospital District, 451 So. 2d 524 (Fla. 5th DCA 1984). We reject appellee’s argument. As explained by the Florida Supreme Court in Board of County Commissioners of Madison County v. Grice, 438 So. 2d 392, 394 (Fla.1983), “An order on a motion to dismiss may not be final, but an order which actually dismisses the complaint is.” (Emphasis supplied.) See also Taylor v. Hartford Accident and Indemnity Co., 405 So. 2d 1070 (Fla. 5th DCA 1981); Gries Inv. Co. v. Chelton, 388 So. 2d 1281 (Fla.3d DCA 1980); Raphael v. earner, 194 So. 2d 298 (Fla. 4th DCA 1967). Here the order actually dismissed the complaint and therefore it was a final, appealable order. The order in Berenyi, on the other hand, merely granted a motion to dismiss, and therefore Berenyi is distinguishable. The language in Berenyi which indicated that dismissal of a complaint must be made “with prejudice” in order to be final and appealable was merely dictum and was not in conformity with previous decisions of this and other courts.1
The motion to dismiss is
DENIED.
SHARP and COWART, JJ., concur. . In Lawler v. Harris, 418 So. 2d 1239 (Fla. 5th DCA 1982), this court adopted the view expressed in Gries Inv. Co. v. Chelton, 388 So. 2d 1281 (fla.3d DCA 1980), and 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.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Riedel v. NCNB Nat'l Bank OF Fla., Inc., 591 So. 2d 1038 (Fla. 1st DCA 1991)…mply grant the motion to dismiss. While the complaint was not dismissed with prejudice, the order under review did specifically dismiss the amended complaint; therefore, the order is ap-pealable. Salasky v. Humana Hospital Kissimmee Auxiliary, Inc., 478 So. 2d 428 (Fla. 5th DCA 1985). . According to the terms of the NVI mortgage, the principal was to be paid on demand or August 1, 1989. Appellant alleged in his amended complaint that on October 31, 1989, NCNB demanded payment of the mortgage in full by Novem…
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Stebnicki v. Wolfson, 584 So. 2d 177 (Fla. 3d DCA 1991)…a final appealable order. See Board of County Commissioners of Madison County v. Grice, 438 So. 2d 392 (Fla. [*179] 1983); Diaz v. Metro-Dade Police Department, 557 So. 2d 608 (Fla. 3d DCA 1990); Salasky v. Humana Hospital Kissimmee Auxiliary, Inc., 478 So. 2d 428 (Fla. 5th DCA 1985); Gries Investment Company v. Chelton, 388 So. 2d 1281 (Fla. 3d DCA 1980). This remains true even though the dismissal does not contain language indicating that it is with prejudice. Gries Investment Company v. Chelton, 388 So. 2d…
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Justo Diaz v. Metro-Dade Police Dep't, 557 So. 2d 608 (Fla. 3d DCA 1990)…ith prejudice.” Under prevailing Florida case law, this is clearly a final appealable order which we have jurisdiction to review. Board of County Comm’rs v. Grice, 438 So. 2d 392, 393-94 (Fla.1983); Salasky v. Humana Hosp. Kissimmee Auxiliary, Inc., 478 So. 2d 428 (Fla. 5th DCA 1985). The basis for the dismissal order below was that the subject complaint was, on its face, barred by the applicable four-year statute of limitations. § 95.11(3), Fla. Stat. (1983). Without dispute, more than four years elapsed f…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Gries Inv. Co. v. Chelton, 388 So. 2d 1281 (Fla. 3d DCA 1980)
- Bd. of Cnty. Comm'rs of Madison Cnty. v. Grice, 438 So. 2d 392 (Fla. 1983)
- Robert E. Lawler, M.D. v. Harris, 418 So. 2d 1239 (Fla. 5th DCA 1982)
- Raphael v. Carner, 194 So. 2d 298 (Fla. 4th DCA 1967)
- Taylor v. Hartford Accident & Indem. Co., 405 So. 2d 1070 (Fla. 5th DCA 1981)
- Crenshaw v. Sarasota Cnty. Pub. Hosp. Bd., 466 So. 2d 427 (Fla. 2d DCA 1985)
- Bush v. DuBREE, 466 So. 2d 427 (Fla. 4th DCA 1985)
- Berenyi v. Halifax Hosp. Dist., 451 So. 2d 524 (Fla. 5th DCA 1984)