GMI, LLC, ETC., APPELLANT,
v.
ASOCIACION DEL FUTBOL ARGENTINO, ETC., APPELLEE
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GMI appealed an order granting a motion to dismiss, claiming it was final. The appellate court held that an order merely granting a motion to dismiss is not final and appealable; only an order that actually dismisses the case is final. The court granted GMI 30 days to obtain a proper final dismissal order from the trial court.
An order that merely grants a motion to dismiss is not final and appealable. A final order requires actual dismissal of the case with language that dismisses the complaint and case, not merely an order granting the motion. The notice of appeal was premature.
[1] An order that merely grants a motion to dismiss is not a final order.
[2] An order granting a motion to dismiss, even if stated to be 'with prejudice,' is not final and appealable.
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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.”
Establishes the fundamental distinction that dismissal orders (not merely grant orders) are final and appealable
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Join FLexlaw to unlock all legal intelligenceGMI filed a notice of appeal of an order captioned 'Order Granting Defendant's Motion to Dismiss' that stated the motion was granted and plaintiff was…
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GMI, LLC filed a notice of appeal seeking review of an order captioned “Order Granting Defendant’s Motion to Dismiss” which it characterized as a final order. The body of the order reads in its entirety:
This cause having come to be heard on July 17, 2015 on Defendant’s motion to dismiss amended complaint and the court having heard arguments of counsel, and being otherwise advised in the premises, it is hereupon ORDERED and ADJUDGED that said motion be and same is hereby granted. Plaintiff is not granted leave to amend.
An order that merely grants a motion to dismiss is not a final order. Bd. of Cnty. Comm’rs of Madison Cnty. v. Grice, 438 So.2d 392, 394 (Fla.1983) (“An order on a motion to dismiss may not be final, but an order which actually dismisses the complaint is.”). This is true even if the order grants the motion “with prejudice.” 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. We reject [Appellant’s] contention that the addition of the words ‘with prejudice’ makes the order final.”). For an order to be final, it must constitute an entry of a dismissal of the case. It is the dismissal of the case that is final and ap-pealable, not an order simply granting a motion. Id.
As a plain reading indicates, the order under appeal merely grants a motion; it does not contain language that dismisses the case. Accordingly, it is not a final order and the notice of appeal is premature.
An order dismissing a case could be modeled, with necessary modifications, after the Order Dismissing Case for Lack of Prosecution contained in The Forms for Use with Rules of Civil Procedure, which the Florida Supreme Court has placed at the end of the Florida Rules of Civil Procedure. An appropriate order dismissing a case could be captioned “Final Order Dismissing the Case [or Complaint],” although the caption is not controlling. See Boyd v. Goff, 828 So.2d 468 (Fla. 5th DCA 2002). Its body might read “The motion to dismiss is granted. The plaintiff [name]’s complaint and case against defendant [name] are dismissed. The court reserves jurisdiction to consider a timely motion for costs and attorney’s fees.”
Although the appeal in this case is premature because the order appealed is not final, Florida Rule of Appellate Procedure 9.110(i) provides “[b]efore dismissal, the court in its discretion may grant the parties additional time to obtain a final order from the lower tribunal.” We exercise that discretion here and grant GMI thirty days to obtain a final order from the trial court and to file an amended notice of appeal. Chelton, 388 So.2d at 1282 n. 4. Failure to timely comply with this order will cause this appeal to be dismissed. This decision does not affect the progress of the appeal.
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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)
- Bd. of Cnty. Comm'rs of Madison Cnty. v. Grice, 438 So. 2d 392 (Fla. 1983)
- Boyd v. Goff, 828 So. 2d 468 (Fla. 5th DCA 2002)