WILLIAM JOHNSON, APPELLANT,
v.
FIRST CITY BANK OF GAINESVILLE AND J. EMORY CROSS, APPELLEES
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The First District Court of Appeal dismissed an appeal for lack of jurisdiction, holding that an order granting a motion to dismiss is not a final, appealable order. The court certified five questions of great public importance to the Florida Supreme Court regarding the proper treatment of premature notices of appeal and the scope of appellate court authority to cure jurisdictional defects.
The appellate court lacks jurisdiction because the trial court's order granting the motion to dismiss is not final and therefore not appealable. An appellate court cannot 'relinquish' nonexistent jurisdiction to allow a trial court to enter a proper final order that would then vest appellate jurisdiction.
[1] An order granting a motion to dismiss is not a final, appealable order.
[2] An appellate court lacks jurisdiction to hear an appeal of a non-appealable order.
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Join FLexlaw to unlock all legal intelligence“It is an order granting a motion, not an order dismissing the action. Such an order is not final and not appealable.”
Establishes the foundational jurisdictional rule that distinguishes between orders granting motions and final dismissal orders
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Join FLexlaw to unlock all legal intelligenceWilliam Johnson appealed from a trial court order granting a motion to dismiss filed by First City Bank of Gainesville and J. Emory Cross. The trial c…
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PER CURIAM.
The order from which this appeal is taken granted the appellees’ motion to dismiss “with prejudice”. It is an order granting a motion, not an order dismissing the action. Such an order is not final and not appealable. Gries Investment Company v. Chelton, 388 So. 2d 1281 (Fla. 3rd DCA 1980). The appeal is therefor dismissed for lack of jurisdiction.
We agree with our sister court in Gries that Williams v. State, 324 So. 2d 74 (Fla.1975), does not preclude dismissal in a case such as this one. However, we are not inclined to encourage the trial bench and bar in practices which result in the appeal of such nonappealable orders by accommodating the parties as our sister court has done in Gries. In our view, although the appellate court has the inherent power to determine if it has jurisdiction over a particular appeal, once it has determined that it does not have jurisdiction, the appellate court may not “relinquish” this nonexistent jurisdiction for the entry of a proper order which would then invest the appellate court with jurisdiction to hear the appeal.
We recognize that this position places us in conflict with several of our sister courts, and certify to the Florida Supreme Court the following questions as matters of great public importance:
1. Are the appellate courts of this state bound by what appears to be dictum in Williams v. State, 324 So. 2d 74, 79-80 (Fla.1975), to the effect that a notice of appeal filed prematurely may not be dismissed, but shall exist in a state of limbo until the judgment is rendered, at which time it shall mature and vest jurisdiction in the appellate court?
2. If so, does this rule apply to situations not explicitly discussed in Williams, specifically the situation in which the trial court has granted a motion to dismiss, but has not effectively dismissed the case? Sloman v. Florida Power and Light, 382 So. 2d 834 (Fla. 4th DCA 1980).
3. If an appellate court determines that it does not have jurisdiction to entertain an appeal of a nonappealable order, and the court is not precluded by Williams from dismissing the appeal, is it appropriate for the appellate court to “relinquish jurisdiction” to the trial court for entry of a final, appealable order? Gries Investment Company v. Chelton, 388 So. 2d 1281 (Fla. 3rd DCA 1980); Barnes v. Ross, 386 So. 2d 812 (Fla. 3rd DCA 1980).
4. If an appellate court determines that it does not have jurisdiction to entertain an appeal of a nonappealable order, and the court is precluded by Williams from dismissing the appeal, is it appropriate for the appellate court to “relinquish jurisdiction” to the trial court for entry of a final, appealable order?
5. If Williams precludes dismissal of an appeal and the appellate court may not relinquish jurisdiction, may it inform the parties that the order is deficient and that the notice of appeal will remain “in limbo” until a proper final order is entered?
This appeal is DISMISSED for lack of jurisdiction.
SHIVERS, ZEHMER and BARFIELD, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (45 total)
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Benton v. Moore, 655 So. 2d 1272 (Fla. 1st DCA 1995)…lack of jurisdiction. That is, it has been held that an order which grants a motion to dismiss is neither a final order nor an appealable non-final order. Board of County Commissioners v. Grice, 438 So. 2d 392 (Fla.1983); Johnson v. First City Bank, 491 So. 2d 1217 (Fla. 1st DCA 1986). Appellant, in his response to the order to show cause, simply argues that the order was final. Appellant has failed to distinguish Grice or Johnson or persuade us that the order is final or otherwise appealable. Accordingly, we…
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Russell v. Russell, 507 So. 2d 661 (Fla. 4th DCA 1987)…e effect of non-economy in the judicial system upon the availability of funds for other public needs — such as human services. [*664] I disagree with the First District Court of Appeal’s syllogistic reasoning in Johnson v. First Bank of Gainesville, 491 So. 2d 1217 (Fla. 1st DCA 1986), to wit: 1. We have no jurisdiction over non-ap-pealable orders. 2. This is a non-appealable order. 3. We cannot relinquish jurisdiction which we do not have. American Heritage Dictionary of the English language (1979) could…1 / 2
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Yost v. Am. Nat'l Bank, 570 So. 2d 350 (Fla. 1st DCA 1990)…use it was taken from a non-final, non-appealable order. See State v. Smith, 557 So. 2d 904 (Fla. 1st DCA 1990); Chapman v. Universal Underwriters Insurance Company, 549 So. 2d 679, 680 (Fla. 1st DCA 1989); Johnson v. First City Bank of Gainesville, 491 So. 2d 1217, 1218 (Fla. 1st DCA 1986); Arcangeli v. Albertson’s, Inc., 550 So. 2d 557, 558 (Fla. 5th DCA 1989); White Palms of Palm Beach, Inc. v. Fox, 525 So. 2d 518, 519 (Fla. 4th [*354] DCA 1988); Russell v. Russell, 507 So. 2d 661 (Fla. 4th DCA 1987). Acco…
Previewing 3 of 45 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)
- Barnes v. Dr. Patricia Ross & the Ladies Ctr. of S. Fla., Inc., 386 So. 2d 812 (Fla. 3d DCA 1980)
- Sloman v. Fla. Power & Light Co., 382 So. 2d 834 (Fla. 4th DCA 1980)