TOMMY LEE BENTON, APPELLANT,
v.
PAUL P. MOORE AND RICKY CLOUD, APPELLEES
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Tommy Lee Benton appealed from a trial court order granting defendants' motion to dismiss in a negligence action against Department of Corrections officials. The appellate court dismissed the appeal for lack of jurisdiction, finding that an order granting a motion to dismiss is neither a final order nor an appealable non-final order.
An order granting a motion to dismiss is neither a final order nor an appealable non-final order, and therefore the appellate court lacks jurisdiction to hear an appeal from such an order.
[1] An order granting a motion to dismiss is neither a final order nor an appealable non-final order.
[2] An appellate court may, in its discretion, permit a lower tribunal to render a final order before dismissing an appeal filed prior to a final order.
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Join FLexlaw to unlock all legal intelligence“it has been held that an order which grants a motion to dismiss is neither a final order nor an appealable non-final order”
Establishes the controlling legal principle that dismissal orders lack finality and appealability
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Join FLexlaw to unlock all legal intelligenceBenton filed a circuit court complaint seeking damages for alleged negligence by Department of Corrections officials in handling a disciplinary matter…
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PER CURIAM.
Tommy Lee Benton’s circuit court complaint sought to recover damages for alleged negligence on the part of certain officials of the Department of Corrections in the handling of a disciplinary matter. On July 14, 1994, the trial court entered an order which provides in pertinent part:
THIS CAUSE came on before me on Defendants’ Motion to Dismiss and Plaintiffs Response to Defendants’ Motion to Dismiss. After reviewing the Defendants’ Motion and Plaintiffs Response, it is ORDERED AND ADJUDGED that Defendants’ Motion to Dismiss is hereby granted.
Plaintiff filed a timely notice of appeal.
After the record on appeal was filed, this court directed appellant to show cause why the appeal should not be dismissed for 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 dismiss the appeal for lack of jurisdiction. In doing so, we are not unmindful of Florida Rule of Appellate Procedure 9.110(m) which provides that if a notice of appeal is filed before rendition of a final order, “[bjefore dismissal, the court in its discretion may permit the lower tribunal to render a final order.” We find that a proper exercise of our discretion in this and most cases in this posture is dismissal of the appeal at the time this court is called upon to resolve the jurisdictional issue unless a final order has been rendered by the trial court in the interim. In the absence of some exceptional circumstance, the appeal would be dismissed without prejudice, of course, to the right of the appealing party to file a timely notice of appeal after a final order has been rendered by the trial court.1 As no exceptional circumstances are present in the case at bar, this appeal is dismissed for lack of jurisdiction.
WOLF, WEBSTER and LAWRENCE, JJ., concur. . In Latin Express Service, Inc. v. State, Department of Revenue, No. 95-510, - So. 2d - (Fla. 1st DCA May 18, 1995), this court found that an order which did not advise the appellant of its right to appeal directly to the district court was not final and did not commence the running of the 30-day period for filing of the notice of appeal. Jurisdiction was relinquished pursuant to rule 9.110(m) for entry of a final order. We find Latin Express distinguishable from the instant case because it arose from an administrative tribunal and because the jurisdictional defect was the result of the agency/appellee’s issuance of a defective order.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (106 total)
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Hoffman v. Christi Louise O'Connor, 802 So. 2d 1197 (Fla. 1st DCA 2002)…because the order does not provide for immediate execution of a money judgment. Compare McGurn; Emerald Coast Communications, Inc. v. Carter, 780 So. 2d 968 (Fla. 1st DCA 2001). The appellant’s motion to stay is denied, see Benton v. Moore, [*1198] 655 So. 2d 1272 (Fla. 1st DCA 1995), and this case is dismissed without prejudice to the appellant’s right to appeal upon entry of a final order. The appellant’s motion for extension of time is denied as moot. KAHN, DAVIS and VAN NORTWICK, JJ., concur.…
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Monticello Ins. Co. v. Thompson, 743 So. 2d 1215 (Fla. 1st DCA 1999)…jurisdiction even under Canal Insurance. Accordingly, the instant appeal is hereby dismissed without prejudice to appellant to file a timely notice of appeal when a summary judgment as to coverage is entered by the trial court. See Benton v. Moore, 655 So. 2d 1272, 1273 (Fla. 1st DCA 1995). WEBSTER, DAVIS and VAN NORTWICK, JJ., CONCUR.…
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Hoffman v. Hall, 817 So. 2d 1057 (Fla. 1st DCA 2002)…the proceedings below, effectively leaving no adequate remedy on appeal. Martin Johnson, Inc. v. Savage, 509 So. 2d 1097 (Fla.1987). We also decline appellant’s suggestion to relinquish jurisdiction to permit entry of a final order. Benton v. Moore, 655 So. 2d 1272 (Fla. 1st DCA 1995). DISMISSED. BOOTH, BARFIELD and VAN NORTWICK, JJ., concur.…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Bd. of Cnty. Comm'rs of Madison Cnty. v. Grice, 438 So. 2d 392 (Fla. 1983)
- Johnson v. First City Bank OF Gainesville & J. Emory Cross, 491 So. 2d 1217 (Fla. 1st DCA 1986)