LORENZO Q. SIMON, AS NATURAL MOTHER OF LOUIS L. CALVO, MINOR DECEASED CHILD, APPELLANT,
v.
TAMPA ELECTRIC COMPANY, A FLORIDA CORPORATION, RAUL BERTRAN AND ARMONIA BERTRAN, APPELLEES
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The Florida District Court of Appeal dismissed an appeal from a mother's wrongful death action against Tampa Electric Company because the lower court's order dismissing the complaint while allowing time to file an amended complaint was interlocutory, not final, and therefore not appealable.
An order dismissing a complaint but allowing the plaintiff time to file an amended complaint is interlocutory in nature and not a final judgment, and therefore is not appealable.
“an order which dismissed a complaint for failure to state a cause of action, but which granted plaintiffs' leave to file an amended complaint was an "interlocutory order" and was not a "final decree."”
Establishes the controlling legal principle that dismissal orders with leave to amend are not final and therefore not appealable.
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Join FLexlaw to unlock all legal intelligenceLorenzo Q. Simon, as natural mother of deceased minor Louis L. Calvo, filed an action at law against Tampa Electric Company, Raul Bertran, and Armonia…
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The above case involving an action at law, was orally argued before this court on April 13, 1967. A member of the court questioned the finality of the order upon which the appeal was taken, which order is in part as follows:
“ORDERED and ADJUDGED as follows :
“1. Said Motions to Dismiss be and the same are hereby granted.
“2. Plaintiffs be and are hereby allowed twenty (20) days from the date hereof to file a second amended complaint.
“3. Defendants be and are hereby allowed twenty (20) days from the date of service of any such second amended complaint in which- to plead as they may be advised.”
In Hancock v. Piper, Fla.1966, 186 So.2d 489, our Supreme Court held in a chancery case that an order which dismissed a complaint for failure to state a cause of action, but which granted plaintiffs’ leave to file an amended complaint was an “interlocutory order” and was not a “final decree.”
In Hancock, the Supreme Court said:
“The Supreme Court of the United States in Jung v. K. & D. Mining Co., 356 U.S. 335, 78 S.Ct. 764, 766, 2 L.Ed. 806, held where an order dismisses a complaint but allows the plaintiff time to file an amended complaint is interlocutory in nature and not a final judgment. Among other things the court said
“ ‘The undesirability of useless delays in litigation is more than offset by the hazards of confusion or misunderstanding as to the time for appeal.’ ”
Also in Hancock, the Supreme Court disapproved of the majority opinion in Womack v. Goldberg, Fla.App.1960, 117 So.2d 758, stating:
“ * * * that an order dismissing a cause but granting additional time in which to file an amended complaint is nothing more than an interlocutory order and that the court still has control of the litigation.”
The appeal filed in this cause is sua sponte dismissed.
ALLEN, C. J., and SHANNON and PIERCE, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Berman Leasing Co. v. Brumage, 217 So. 2d 359 (Fla. 3d DCA 1969)…file an amended complaint. The appeal must be dismissed upon the authority of Hancock v. Piper, Fla.1966, 186 So. 2d 489; Southern Laundry Co. of Marianna v. Home Ins. Co., Fla.App. 1966, 190 So. 2d 39; Simon v. Tampa Electric Company, Fla.App.1967, 198 So. 2d 379. We therefore do not determine whether the appellant’s complaint stated a cause of action. It is apparent, however, that the complaint fails to allege more than the barest legal conclusions. In order to obviate a second appeal in this matter, we re…
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Dick Dimond v. Cimaroli, 253 So. 2d 258 (Fla. 2d DCA 1971)…lable under FAR 4.2, 32 F.S.A., the appeal must be dismissed on authority of Hancock v. Piper, Fla.1966, 186 So. 2d 489; Southern Laundry Co. of Marianna v. Home Ins. Co., Fla.App., 1966, 190 So. 2d 39; Simon v. Tampa Electric Company, Fla.App.1967, 198 So. 2d 379; Berman Leasing Company v. Brumage, Fla.App.1969, 217 So. 2d 359. Appeal dismissed. HOBSON and MANN, JJ., concur.…
Authorities Cited
- Jung v. K. & D. Mining Co., Inc., 356 U.S. 335 (U.S. 1958)
- Hancock v. Wilford J. Piper and Alida Piper, 186 So. 2d 489 (Fla. 1966)
- Marvell Womack v. Burton F. Goldberg and Joyce S. Goldberg, 117 So. 2d 758 (Fla. 3d DCA 1960)