HAYWARD & ASSOCIATES, INC., APPELLANT,
v.
M. DEXTER HOFFMAN, NOEL K. EVANS, AND EVANS & DONICA, P.A., A FLORIDA PROFESSIONAL ASSOCIATION, APPELLEES
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An order that dismisses counts of a complaint but does not expressly dismiss the entire complaint or action is not a final appealable order.
[1] An order that dismisses counts of a complaint, but does not expressly dismiss the entire complaint or action, is a nonfinal order.
[2] An order granting a motion to dismiss is not a final order if it does not expressly dismiss the entire complaint or action.
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Join FLexlaw to unlock all legal intelligencePlaintiff filed a seven-count complaint, and the trial court entered an order granting defendants' motion to dismiss each count. The plaintiff then fi…
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ALTENBERND, Acting Chief Judge.'
Hayward & Associates, Inc., appeals an order granting a motion to strike its amended complaint. The trial court struck the amended complaint because it concluded that an earlier order granting a motion to dismiss was a final appealable order. We conclude that the earlier order was not a final order, and accordingly reverse the order striking the amended pleading.1
Hayward & Associates filed a seven-count complaint against M. Dexter Hoffman, Noel K. Evans, and Evans & Donica, P.A.2 The defendants moved to dismiss the complaint. On October 22, 1999, Judge Edward H. Ward entered a twelve-page order. The order is a textbook example of a hybrid order, mixing concepts of finality and nonfinality. The order is entitled an “Order Granting Defendant’s Motion to Dismiss.” At the end of the long document, it states that it is “ordered and adjudged” that the “motion to dismiss as to Count I is granted.” The order then continually repeats this language for each of the seven counts. At its conclusion, the order does not grant leave to amend, but it also does not use the phrase “with prejudice.” Although it dismisses each and every count, it does not expressly dismiss the entire complaint or action.
Within the body of the order, in a lengthy section entitled “Analysis,” the merits of each count are considered and rejected. The trial court finds that each count, as pleaded, fails to state a cause of action.3 At the end of the discussion of count I, the order states: “For the foregoing reasons Count I shall be dismissed.” At the end of the next discussion, it states: “This Court finds that Count II fails to state a cause of action or a claim for relief and dismisses the same.” Next, the court declares that “Count III should be dismissed for failure to state a cause of action.” As to count IV, the court returns to the language “shall be dismissed.” It determines that count V “should be dismissed.” After more discussion, it rules: “Consequently, Count VI is dismissed.” Finally, although the court found the attempt to allege civil conspiracy in count VII deficient, it did not conclude its analysis with any words that might be construed as words of finality.
A cautious plaintiff would have rapidly sought rehearing or clarification of this unusual order. Instead, Hayward & Associates waited more than thirty days and then filed an amended complaint on December 15, 1999, without any accompanying motion to amend. The defendants immediately moved to strike this pleading as an unauthorized pleading and asserted that the order granting the motion to dismiss was a final order from which no timely appeal had been taken. Hayward & Associates then filed a motion for leave to amend its complaint. By the time of the hearing on the motion to strike and the motion to amend, the case had been reassigned to Judge Espinosa. He was persuaded that Judge Ward’s earlier order was intended to be a final judgment, and thus he struck the amended pleading.
The defendants correctly argue that the October 22 order did not need to state that it was “with prejudice” or expressly deny the right to amend in order to be a final order. See Smith v. St Vil, 714 So. 2d 603 (Fla. 4th DCA 1998); Carnival Corp. v. Sargeant, 690 So. 2d 660 (Fla. 3d DCA 1997). On the other hand, it is well-established that an order that merely grants a motion to dismiss, as contrasted with an order 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” at the end of the order, this is merely a nonfinal order granting motions to dismiss.
Accordingly, we reverse the order on appeal and remand for the trial court to consider the plaintiffs motion to amend its complaint.
Reversed and remanded.
SALCINES, J., and CAMPBELL, MONTEREY, (Senior) Judge, Concur. . Our jurisdiction in this context is confusing at best. If the earlier order had been a final order, the order on appeal would be appeal-able under Florida Rule of Appellate Procedure 9.130(a)(4) as a nonfinal order rendered after entry of an earlier final order. Because we conclude that the earlier order was nonfi-nal, the order striking the amended complaint is effectively a final order because it is the last order that the trial court was willingly prepared to enter in this case.
. Other plaintiffs joined in the complaint but have not appealed this order. Although they are technically appellees, see Fla. R.App. P. 9.020(g), they have not participated as such in this appeal.
.The order does not foreclose tire possibility that the complaint could be amended to properly assert at least some of these claims. Because this was Hayward and Associates' first complaint, to enter a final order dismissing this complaint with prejudice and without opportunity to amend would have been an abuse of discretion. See Kapley v. Borchers, 714 So. 2d 1217 (Fla. 2d DCA 1998).
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Bryant v. State, 901 So. 2d 810 (Fla. 2005)…e to amend has been abused; or amendment would be futile”); Thompson v. Jared Kane Co., 872 So. 2d 356, 360 (Fla. 2d DCA 2004) (same); Cason v. Fla. Parole Comm’n, 819 So. 2d 1012, 1013 (Fla. 1st DCA 2002) (same); Hayward & Assocs., Inc. v. Hoffman, 793 So. 2d 89, 90 n. 3 (Fla. 2d DCA 2001) (stating that, because the complaint in question was the first submitted by the plaintiff, “to enter a final order dismissing th[e] complaint with prejudice and without opportunity to amend would have been an abuse of dis…
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Rufino Hernandez v. State Farm Mut. Auto. Ins. Co., 32 So. 3d 695 (Fla. 4th DCA 2010)…not appear to address the motion to dismiss at all. Even if the trial court’s original order was intended to address the motion to dismiss, an order that merely grants a motion to dismiss is not a final order. See Hayward & Assocs., Inc. v. Hoffman, 793 So. 2d 89, 91 (Fla. 2d DCA 2001). To satisfy finality, the order must go further and dismiss the cause or complaint. Raphael v. Carner, 194 So. 2d 298, 300 (Fla. 4th DCA 1967). Therefore, because the order granting Hernandez’s motion to quash was not a final…
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Murphy v. Wisu Props., Ltd., 895 So. 2d 1088 (Fla. 3d DCA 2004)…ason, this order is a non-final order. The law is clearly established that “an order which merely grants a motion to dismiss, as contrasted with an order dismissing a complaint or an action, is not a final order.” Hayward & Assocs., Inc. v. Hoffman, 793 So. 2d 89, 91 (Fla. 2d DCA 2001). See also Gries Inv. Co. v. Chelton, 388 So. 2d 1281, 1282 (Fla. 3d DCA 1980) (“An order granting a motion to dismiss is not final and not appealable.”). For this reason, we dismiss this portion of the appeal without addressin…
Previewing 3 of 14 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)
- Kenneth Kapley, D.D.S. v. Borchers, 714 So. 2d 1217 (Fla. 2d DCA 1998)
- Smith v. ST. VIL, 714 So. 2d 603 (Fla. 4th DCA 1998)
- Carnival Corp. v. Sargeant, 690 So. 2d 660 (Fla. 3d DCA 1997)
- Chesbrough v. Shope, 544 So. 2d 1078 (Fla. 2d DCA 1989)