LTC WILLIAM L. ALLEN (RET), APPELLANT,
v.
FLORIDA DEPARTMENT OF MILITARY AFFAIRS, APPELLEE
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LTC William L. Allen appealed from an order granting a motion to dismiss filed by the Florida Department of Military Affairs, raising the question of whether such an order is final and appealable. The Fifth District Court of Appeal held that an order merely granting a motion to dismiss is not a final, appealable order under Florida law and therefore dismissed the appeal.
An order merely granting a motion to dismiss is neither a judgment nor a final dismissal and therefore is not a final, appealable order. Only an order that actually dismisses the complaint is final and appealable.
[1] An order merely granting a motion to dismiss, without words of actual dismissal, is not a final order for appellate purposes.
[2] An order that actually dismisses a complaint is a final order for appellate purposes.
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.”
The Florida Supreme Court's holding in Grice establishing the distinction between non-final orders granting motions to dismiss and final dismissal orders.
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Join FLexlaw to unlock all legal intelligenceAllen, as plaintiff, filed a complaint against the Florida Department of Military Affairs. The Department moved to dismiss the complaint on various gr…
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COBB, Judge.
The appellant Allen, as plaintiff below, filed a complaint against the Florida Department of Military Affairs, which moved to dismiss it on various grounds. Pursuant to a hearing on that motion, the trial court entered an order granting the motion to dismiss, but lacking any words of actual dismissal. Allen filed his appeal to this court within thirty days of entry of the 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 Arcangeli v. Albertson’s, Inc., 550 So. 2d 557 (Fla. 5th DCA 1989), we abandoned the Lawler remedy of a temporary relinquishment of jurisdiction to allow the parties to obtain a final appealable order and opted instead for outright dismissal of defective appeals from non-appealable orders.
In the interim between Lawler and Ar-cangeli, the Florida Supreme Court adopted the Gries rationale in Board of County Commissioners of Madison County v. Grice, 438 So. 2d 392 (Fla.1983), stating:
An order on a motion to dismiss may not be final, but an order which actually dismisses the complaint is.
Grice upheld the finality of an order which actually dismissed the complaint, expressly citing to Gries, and was in accordance with our analysis in Lawler. We, of course, are bound by the Grice decision emanating from the Florida Supreme Court, a decision which has not been modified or superseded at any subsequent time. The Fourth District has also recognized the availing authority of Grice in respect to the issue of dismissing appeals from non-final orders, and has further recognized that the holding in Grice relied upon Gries Investment, as we did in Lawler. See Russell v. Russell, 507 So. 2d 661 (Fla. 4th DCA 1987).1
In our recent opinion in State v. Saufley, 574 So. 2d 1207 (Fla. 5th DCA 1991), a criminal appeal dealing with the appealability of an order granting a motion to suppress,. there is unfortunate dictum critical of Lawler as emphasizing form over substance. Saufley, however, makes no mention of either Grice or Gries Investment, and clearly we are bound by Grice, irrespective of the dictum in Saufley.
Accordingly, consistent with Grice, Lawler, and Arcangeli, we dismiss the instant appeal.
DAUKSCH and COWART, JJ„ concur. . Judge Hersey, concurring specially in Russell, stated:
By the opinions in this case we have already used a great many words to discuss a very simple rule, one that has already been explicitly and clearly enunciated' by Judge Daniel Pearson in his opinion, particularly in footnote four, in Gries: an order merely granting or denying a motion is not a final appealable order. Gries Investment Co. v. Chelton, 388 So. 2d 1281, 1292 (Fla. 3d DCA 1980). There is little, indeed nothing, to be gained by further and protracted reiteration of that explanation here.
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BCH Mech., Inc. v. McCOY, 584 So. 2d 1067 (Fla. 5th DCA 1991)…Recovery v. Marino Trucking, Inc., 581 So. 2d 644 (Fla. 3d DCA 1991). Accordingly, this court lacks jurisdiction to review this case. See Dykstra-Gulick v. Gulick, 519 So. 2d 406 (Fla. 5th DCA 1991); Allen v. Florida Department of Military Affairs, 576 So. 2d 971 (Fla. 5th DCA 1991); Becton v. K & L Contractors, Inc., 573 So. 2d 428 (Fla. 5th DCA 1991); Wetterauer v. Frontenac Flea Market, Inc., 573 So. 2d [*1068] 138 (Fla. 5th DCA 1991); McPheeters v. Tolbert, 561 So. 2d 18 (Fla. 5th DCA 1990). But see Dobr…
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Jake & THE FAT MAN Bike Week USA, Inc. v. Biker Design, Inc., 919 So. 2d 476 (Fla. 5th DCA 2005)…. Fla. R.App. P. 9.130(a)(3)(A). Also, an order granting a motion to dismiss without prejudice is a nonfinal order. Jim Macon Bldg. Contractors, Inc. v. Lake County, 763 So. 2d 1223, 1225 (Fla. 5th DCA 2000); Allen v. Fla. Dept. of Military Affairs, 576 So. 2d 971, 972 (Fla. 5th DCA 1991). Motions for rehearing of nonfinal orders do not toll the time for taking an appeal. Bennett v. Bennett, 645 So. 2d 32, 32 (Fla. 5th DCA 1994); Adlow, Inc. v. Mauda, Inc., 632 So. 2d 714, 714-15 (Fla. 5th DCA 1994); Manna P…
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Real Est. Corp. OF Fla., N.V. v. Dawn Developers, Inc., 644 So. 2d 145 (Fla. 5th DCA 1994)…erefore, concludes REC, it is not an ap-pealable final judgment just as the grant of a motion to dismiss or for summary judgment is not an appealable final judgment in the absence of words of finality. See Allen v. Florida Dept. of Military Affairs, 576 So. 2d 971 (Fla. 5th DCA 1991). This court has held that a non-final order denying a motion for protective order entered in proceedings supplementary is an appealable order under Rule 9.130(a)(4), Florida Rules of Appellate Procedure. Mogul v. Fodiman, 406 So…
Previewing 3 of 7 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)
- Russell v. Russell, 507 So. 2d 661 (Fla. 4th DCA 1987)
- State v. Saufley, 574 So. 2d 1207 (Fla. 5th DCA 1991)
- Kramer v. State, 550 So. 2d 557 (Fla. 5th DCA 1989)
- Arcangeli v. Albertson's, Inc., 550 So. 2d 557 (Fla. 5th DCA 1989)
- Robert E. Lawler, M.D. v. Harris, 418 So. 2d 1239 (Fla. 5th DCA 1982)