RICHARD A. CHESBROUGH AND KIM M. CHESBROUGH, APPELLANTS,
v.
BRUCE V. SHOPE AND DOROTHY B. SHOPE, APPELLEES
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The Florida appellate court reversed the trial court's order striking an amended complaint. The trial court had erroneously concluded it lacked jurisdiction to permit the amended complaint because it believed an earlier dismissal order was final, when in fact the form of that order was merely a grant of defendants' motion to dismiss rather than an affirmative order of dismissal.
The trial court had jurisdiction to grant the motion for leave to file an amended complaint. An order granting a motion to dismiss is not the same as an order of dismissal, and form is determinative in such orders. Because the January 20, 1987 order only granted the motion to dismiss rather than affirmatively dismissing the complaint, the court retained jurisdiction over the cause.
[1] An order granting a motion to dismiss is not an order of dismissal.
[2] A court's jurisdiction to permit the filing of an amended complaint is not lost if the prior dismissal order was not a final order of dismissal.
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“We cannot under these circumstances elevate intended substance over form. It is established that the form of orders of this kind is determinative.”
Establishes the governing legal principle that form, not intent, determines whether an order is final and what its effect is.
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Join FLexlaw to unlock all legal intelligencePlaintiffs Chesbrough filed a complaint against defendants Shope. On January 20, 1987, the trial court granted defendants' motion to dismiss the origi…
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LEHAN, Judge.
We reverse the trial court’s August 16, 1988 order which struck appellants’ amended complaint. The amended complaint had been filed pursuant to a May 2, 1988 order of the same court granting leave to file an amended complaint. The stated basis for the August 16, 1988 order was that the trial court had lacked jurisdiction to permit the filing of an amended complaint because that court had previously, on January 20, 1987, as affirmed by that court on July 27, 1987, dismissed the original complaint pursuant to final orders as to which no motion for rehearing had been filed and from which no appeal had been taken.
We do not agree that the trial court had lacked such jurisdiction. The reason is that the January 20, 1987 order had only granted defendants’ motion to dismiss the original complaint and therefore, as is conceded by appellees, had not been a final order of dismissal. While the July 27, 1987 order stated that the January 20, 1987 order had been “an order dismissing the complaint,” the January 20,1987 order had not actually done so. While it appears from the July 27, 1987 order that the court had intended to dismiss the complaint, we cannot under these circumstances elevate intended substance over form. It is established that the form of orders of this kind is determinative. See Gries Investment Co. v. Chelton, 388 So. 2d 1281, 1282 (Fla.3d DCA 1980); Guth v. Howard, 362 So. 2d 725 (Fla.2d DCA 1978) (an order granting a motion to dismiss is not an order of dismissal). See also Scott v. Waste Management, Inc. of Florida, 537 So. 2d 686 (Fla.4th DCA 1989).
It is therefore of no significance for present purposes that plaintiffs failed to appeal within thirty days, or to file a motion for rehearing within ten days, following entry of either the January 20, 1987 order or the July 27, 1987 order. When plaintiffs filed their motion for leave to file an amended complaint and the motion was granted, the court had not lost jurisdiction of the cause. Its May 2, 1988 order granting such leave had been entered with jurisdiction to do so. Reversed and remanded for proceedings consistent herewith.
RYDER, A.C.J., and ALTENBERND, J., concur.
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Monticello Ins. Co. v. Thompson, 743 So. 2d 1215 (Fla. 1st DCA 1999)…ontained neither “the traditional words of finality nor other words of similar import,” were not final orders subject to appellate review). Although we recognize that our ruling may well elevate form over intended substance, see Chesbrough v. Shope, 544 So. 2d 1078 (Fla. 2d DCA 1989), case law establishes that “the form of orders of this kind is determinative.” Id. Thus, without language in the order which “hereby enters” a judgment, or similar unequivocal language of finality, ruling that insurance coverage e…
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Hayward & Assocs., Inc. v. M. Dexter Hoffman, Noel K. Evans, & Evans & Donica, P.A., 793 So. 2d 89 (Fla. 2d DCA 2001)…er dismissing a complaint or an action, is not a final order. Gries Inv. Co. v. Chelton, 388 So. 2d 1281 (Fla. 3d DCA 1980); Bd. of County Comm’rs of Madison County v. Grice, 438 So. 2d 392 (Fla.1983) (approving Gries Inv. Co.)] Chesbrough v. Shope, 544 So. 2d 1078 (Fla. 2d DCA 1989). The October 22 order, using various expressions, dismissed counts of the complaint, but it never expressly dismissed the entire complaint. Especially when one considers the title of the order and the matters “ordered and adjudged…
Authorities Cited
- Gries Inv. Co. v. Chelton, 388 So. 2d 1281 (Fla. 3d DCA 1980)
- Guth v. Nell F. Howard, 362 So. 2d 725 (Fla. 2d DCA 1978)
- Moment v. State, 537 So. 2d 686 (Fla. 4th DCA 1989)
- Scott v. Waste Mgmt., 537 So. 2d 686 (Fla. 4th DCA 1989)