CARNIVAL CORPORATION, F/K/A CARNIVAL CRUISE LINES, PETITIONER,
v.
MICHAEL SARGEANT, BERNADETTE FREDERICK, GERALD HANDY AND ERTON GURLEY, RESPONDENTS
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Carnival Corporation sought a writ of prohibition after the trial court allowed respondents to amend their complaint following the court's dismissal order. The appellate court held that a dismissal without prejudice is a final appealable order, and the trial court lacked jurisdiction to permit amendments after that order became final.
A dismissal without prejudice is a final appealable order. Once such an order is entered, the trial court lacks jurisdiction to permit amendments unless the party timely sought rehearing, appealed, or filed a new lawsuit. Here, respondents did none of these, so the trial court was without authority to allow the amendment.
[1] A dismissal of a complaint, even if without prejudice, constitutes a final appealable order.
[2] A party must timely seek rehearing, appeal, or file a new lawsuit after a dismissal to avoid the consequences of that dismissal.
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Join FLexlaw to unlock all legal intelligence“In Gries we held that a dismissal need not be with prejudice to be a final order for appeal purposes.”
Establishes the key legal principle that dismissal orders are final and appealable regardless of whether they are with or without prejudice.
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Join FLexlaw to unlock all legal intelligenceRespondents filed a putative class action against Carnival Corporation for debt and civil remedy for criminal practices. The trial court granted Carni…
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SORONDO, Judge.
The Respondents/Plaintiffs filed a putative class action lawsuit against the Petitioner/Defendant for debt and civil remedy for criminal practices. The Petitioner filed its motion to dismiss on July 22, 1996. A hearing was held on the motion to dismiss on September 27, 1996. By order dated November 4, 1996, the trial court granted the motion, stating, in pertinent part,
ORDERED AND ADJUDGED that Defendant’s Motion to Dismiss be and the same is hereby GRANTED; Plaintiff’s Complaint is hereby dismissed, without prejudice.
Noticeably, the order did not grant leave to amend.
On November 25, 1996, without leave of court, Respondents filed an amended complaint. On December 10, 1996, Petitioner filed a motion to strike the amended complaint and jury trial demand, and in the alternative, motion to dismiss, challenging the propriety of filing an amended complaint without leave of court. These motions were heard on January 8,1997.
At the hearing, the trial judge granted Appellant’s motion to strike the amended complaint, but allowed Respondents to amend, based on an ore tenus motion Respondents first asserted at the hearing. The trial judge ordered that the amended complaint be deemed filed as of November 25, 1996, but later clarified his order on January 21, 1997, stating the amended complaint be deemed filed as of January 8,1997.
The Petitioner filed a Petition for Writ of Prohibition or Certiorari with this court, arguing that the trial court’s order of November 4, 1996, granting the motion to dismiss and dismissing the complaint without prejudice, was a final appealable order; that the unauthorized amended complaint was a nullity, and that the trial court was without jurisdiction to act upon Respondent’s ore tenus motion for leave to file an amended complaint. We agree.
In Gries Investment Company v. Chelton, 388 So. 2d 1281 (Fla. 3d DCA 1980), we dealt with an almost identical situation. There, the plaintiff filed a complaint against the defendant. In February 1979, the trial court granted the defendant’s motion to dismiss for failure to state a cause of action. The court’s order stated:
[T]hat the Complaint filed by Plaintiff herein be and the same is hereby dismissed, as to the Defendant, Robert G. Chelton, individually.
Id.
In Gries we held that a dismissal need not be with prejudice to be a final order for appeal purposes. Id. at 1282. Thus, in the present case, the order dismissing the complaint was a final appealable order. See also Carlton v. Wal-Mart Stores, Inc., 621 So. 2d 451 (Fla. 1st DCA 1993); Derma Lift Salon, Inc. v. Swanko, 419 So. 2d 1180 (Fla. 3d DCA 1982). In order to avoid the consequences of the dismissal, the Respondents were obligated to timely seek rehearing, appeal or file a new lawsuit. They did none of these. As a re- suit, the trial court did not have jurisdiction at the time it entei’ed the order granting leave to amend the complaint. Jennings Construction Corp. v. C.H.V. Investment Corp., 386 So. 2d 290 (Fla. 3d DCA 1980).
The Petition for Writ of Prohibition is granted. The trial court is directed to quash its order of January 21, 1997 and to reinstate the order of dismissal.
It is so ordered.
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Citator
Cited By (12 total)
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Hinote v. Ford Motor Co., 958 So. 2d 1009 (Fla. 1st DCA 2007)…smiss the appeal as premature because the order does not contain sufficient language of finality to constitute a final order. See Bushweiler v. Levine, 476 So. 2d 725 (Fla. 4th DCA 1985). We recognize that the opinion in Carnival Corp. v. Sargeant, 690 So. 2d 660 (Fla. 3d DCA 1997), addressed this issue of finality and reached a different conclusion. In Carnival Corp., the court held that an order of dismissal without prejudice was final where the order notably did not grant leave to amend. We agree that whe…
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Smith v. ST. VIL, 714 So. 2d 603 (Fla. 4th DCA 1998)…important to view orders of dismissal from the perspective of what they do, not according to whether they state that they are with or without prejudice. Relying on the wording can create a trap for the unwary. See, e.g., Carnival Corp. v. Sargeant, 690 So. 2d 660 (Fla. 3d DCA), rev. denied, 697 So. 2d 1218 (Fla.1997)(holding that an order dismissing a complaint for failure to state a cause of action without prejudice, but which did not grant leave to amend, was the final order which should have been appealed…
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Valcarcel v. Chase Bank USA NA, 54 So. 3d 989 (Fla. 4th DCA 2010)…nal appealable order. An order dismissing an action without prejudice and without granting leave to amend is a final appealable order. Silvers v. Wal-Mart Stores, Inc., 763 So. 2d 1086, 1086 (Fla. 4th DCA 1999); see also Carnival Corp. v. Sargeant, 690 So. 2d 660 (Fla. 3d DCA 1997). “The order of dismissal is clearly final when, for instance, the claim could only be pursued by filing a new complaint....” Hinote v. Ford Motor Co., 958 So. 2d 1009, 1010 (Fla. 1st DCA 2007) (citing Delgado v. J. Byrons, Inc., 8…
Previewing 3 of 12 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)
- Pansy O. Carlton v. Wal-Mart Stores, Inc., 621 So. 2d 451 (Fla. 1st DCA 1993)
- Derma Lift Salon, Inc. v. Honorable Edward Swanko, 419 So. 2d 1180 (Fla. 3d DCA 1982)
- Jennings Constr. Corp. v. C. H. V. Inv. Corp., 386 So. 2d 290 (Fla. 3d DCA 1980)