PALM AFC HOLDINGS, INC., APPELLANT,
v.
MINTO COMMUNITIES, INC., PALM BEACH COUNTY, A POLITICAL SUBDIVISION OF THE STATE OF FLORIDA, AND GEORGE WEBB, IN HIS CAPACITY AS PALM BEACH COUNTY ENGINEER AND NOT INDIVIDUALLY, APPELLEES
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The Fourth District Court of Appeal dismissed Palm AFC's appeal as untimely, holding that an order dismissing a complaint for failure to state a cause of action is final and appealable even without the words "with prejudice," and that the subsequent order purporting to dismiss with prejudice was a nullity entered without jurisdiction.
An order dismissing a complaint for failure to state a cause of action is a final, appealable order on the merits regardless of whether it contains the words "with prejudice." The May 11, 2000 order was final, the trial court lacked jurisdiction to grant leave to amend after that order became final, the June 29, 2000 order was a nullity, and the appeal is therefore untimely and dismissed.
[1] An order dismissing a complaint for failure to state a cause of action is a final, appealable order, even if it does not explicitly state "with prejudice."
[2] A dismissal for failure to state a cause of action operates as an adjudication on the merits.
Previewing 2 of 5 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 dismissing a complaint for failure to state a cause of action need not contain the words "with prejudice" in order to be final. The court reasoned that such a dismissal is final and the words "with prejudice" are redundant.”
Establishes the core holding that dismissal for failure to state a cause of action is inherently final regardless of specific language used.
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Join FLexlaw to unlock all legal intelligenceOn May 11, 2000, the trial court dismissed all counts of appellant's second amended complaint against Palm Beach County without stating "with prejudic…
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Order Dismissing Appeal
KLEIN, J.
Appellee Minto has moved to dismiss this appeal on the ground that the notice of appeal was not timely as to an order dismissing a complaint for failure to state a cause of action. Appellant responds that the order was not a final order because it did not contain the words “with prejudice,” and therefore the notice of appeal, which is timely as to a subsequent order dismissing with prejudice, is timely. We grant the motion to dismiss.
On May 11, 2000, the trial court dismissed all counts in appellant’s second amended complaint against Palm Beach County, stating: “Counts 1 through 4 of the second amended complaint are dismissed.” The order did not grant leave to amend or contain the words “with prejudice.” Appellant timely filed a motion for rehearing directed to that order, and that motion was denied on May 30, 2000.
Appellant next filed a motion for leave to amend on June 1, 2000, which was granted by agreement of the parties on June 12, 2000. Appellant did not file an amended .complaint, but then moved “for entry of final appealable judgment” on June 22, 2000. The court then entered an order dismissing the counts against Palm Beach County with prejudice on June 29, 2000. Appellant filed its notice of appeal of the June 29, 2000 order on July 26, 2000.
Appellee Minto1 has moved to dismiss the appeal on the ground that it is untimely, asserting that the May 11, 2000 order dismissing all counts as to Palm Beach County was a final appealable order, and that thirty days for filing the appeal ran from the rendition of that order, which occurred when the motion for rehearing directed to that order was denied. Appellant responds that the May 11, 2000 order was not a final order because it did not contain the words “with prejudice.”
Appellee relies on Gries Investment Co. v. Chelton, 388 So. 2d 1281 (Fla. 3d DCA 1980), in which the third district, after analyzing this precise issue, came to the conclusion that an order dismissing a complaint for failure to state a cause of action need not contain the words “with prejudice” in order to be final. The court reasoned that such a dismissal is final and the words “with prejudice” are redundant. Id. at 1282. Gries was followed, under facts similar to those in the present case, in Carnival Corp. v. Sargeant, 690 So. 2d 660 (Fla. 3d DCA 1997). This court, in Smith v. St. Vil, 714 So. 2d 603 (Fla. 4th DCA 1998), cited Carnival.
The rationale of the above cases, that the words “with prejudice” are not material in determining the finality of an order dismissing a complaint for failure to state a cause of action, is consistent with the rule that a dismissal for failure to state a cause of action is an adjudication on the merits. Hardee v. Gordon Thompson Chevrolet, Inc., 164 So. 2d 174 (Fla. 1st DCA 1963). See also, North Shore Realty Corp. v. Gallaher, 99 So. 2d 255 (Fla. 3d DCA 1957)(It is the substance of the order, not whether it contains the words “with prejudice,” which determines wheth-, er it is an adjudication on the merits).2
We agree with Gries and Carnival. Accordingly, just as in Carnival and Gries, the trial court had no jurisdiction when it entered the order granting leave to amend the complaint. The order dismissing with prejudice on June 29, 2000, was a nullity. This appeal, which is taken from that order, is untimely as to the May 11, 2000 order, and is therefore dismissed for lack of jurisdiction.
STONE and STEVENSON, JJ., concur. . Minto has an interest in having the appeal against Palm Beach County dismissed.
. See also Florida Rule of Civil Procedure 1.420(b), entitled "Involuntary dismissal" which provides in part:
Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction or for improper venue or for lack of an indispensable party, operates as an adjudication on the merits.
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Citator
Cited By
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Palm AFC Holdings, Inc. v. Palm Beach Cnty., 807 So. 2d 703 (Fla. 4th DCA 2002)…dings based on res judicata was error, and accordingly, reverse. Our review of the record reveals the Judgment on the Pleadings was based on res judicata, regarding this court’s earlier opinion in Palm AFC Holdings, Inc. v. Minto Communities, Inc., 766 So. 2d 436 (Fla. 4th DCA 2000) 1 Our prior opinion merely addressed the legal viability of appellant’s damage claims against Palm Beach County. Appellant had attempted to appeal the Circuit Court’s dismissal of Counts 1 through 4 of its complaint, its damage c…
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James v. Crews, 132 So. 3d 896 (Fla. 1st DCA 2014)…es.” Gries Inv. Co. v. Chelton, 388 So. 2d 1281, 1283 (Fla. 3d DCA 1980) (where dismissal deemed an adjudication on the merits by rule 1.420(b), Fla. R. Civ. P., it was final appealable order); see also Palm AFC Holdings, Inc. v. Minto Cmtys., Inc., 766 So. 2d 436 (Fla. 4th DCA 2000) (dismissing complaint for failure to state cause of action was adjudication on merits pursuant to rule 1.420(b) and thus final for purposes of appeal). Amendment of the pro se complaint for the extraordinary writ is not contempla…
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State Farm Mut. Auto. Ins. Co. v. Open MRI OF Orlando, Inc., 780 So. 2d 339 (Fla. 5th DCA 2001)…ly that Open MRI shall “take nothing by this action” and that State Farm “shall go hence without day.” However, such language is not essential to the finality of a judgment for appeal purposes. See Palm AFC Holdings, Inc. v. Minto Communities, Inc., 766 So. 2d 436 (Fla. 4th DCA 2000) (order dismissing second amended complaint for failure to state cause of action was final appealable order though it did not state that dismissal was “with prejudice;” subsequent order dismissing complaint with prejudice was a nu…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Gries Inv. Co. v. Chelton, 388 So. 2d 1281 (Fla. 3d DCA 1980)
- N. Shore Realty Corp. v. Gallaher, 99 So. 2d 255 (Fla. 3d DCA 1957)
- Hardee v. Gordon Thompson Chevrolet, Inc., 154 So. 2d 174 (Fla. 1st DCA 1963)
- Smith v. ST. VIL, 714 So. 2d 603 (Fla. 4th DCA 1998)
- Carnival Corp. v. Sargeant, 690 So. 2d 660 (Fla. 3d DCA 1997)