The Florida Bar
www.floridabar.org
The Florida Bar Journal
September/October, 2013 Volume 87, No. 8
Orders on Motions to Dismiss for Failure to State a Cause of Action — When Are They Final for Purposes of Filing Notice of Appeal?

by Carol A. Gart

Page 24

Finality is, of course, the sine qua non for a final plenary appeal to the Florida district courts of appeal.1 This is nothing new. But judging from the number of decisions addressing this issue, the question of what is a final appealable order can be elusive. Of particular confusion are the possible orders on a motion to dismiss for failure to state a cause of action, which might be entered in a number of different ways. For instance, the order might grant the motion or dismiss the case. Such an order might be with or without prejudice, or with or without leave to amend. At least one Florida district court has described the appellate decisions on this subject as “submerged in a quagmire of semantics.”2

Finality depends upon which words are used and how they are used in the order. But making sense of those words can prove difficult. The Fourth District made that very point in Smith v. St. Vil, 714 So. 2d 603 (Fla. 4th DCA 1998), observing that, “it is 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.”3 The court further cautioned that, “[r]elying on the wording can create a trap for the unwary” because “failing to appeal an order which is appealable can sometimes be fatal.”4

This article explores finality as applied to the variations in these orders, in hopes of making sense of the morass and providing guidance on when the appellate clock starts ticking to file a notice of appeal.

Order Granting Motion to Dismiss
By now, it is well settled that an order granting a motion to dismiss, rather than dismissing the case, is a nonfinal order.5 Since further judicial labor is required to dismiss the case, the order is not appealable.6

But even this distinction can be fraught with difficulty. Take for instance the Second District’s decision in Hayward & Assocs. v. Hoffman, 793 So. 2d 89 (Fla. 2d DCA 2001), in which the trial court entered an order titled “Order Granting Defendant’s Motion to Dismiss.” Within the order, the court dismissed each count of the complaint but not the complaint as a whole, and did not grant leave to amend or use the phrase “with prejudice.” Judge Alternbernd, writing for the unanimous court, described the order as “a textbook example of a hybrid order, mixing concepts of finality and nonfinality.” Judge Altenbernd recognized that the order did not have to deny expressly the right to amend or use the phrase “with prejudice” to be a final order. But since the order merely dismissed each count — rather than dismissing the entire complaint — the order was a nonfinal order that was not ripe for appeal.7

Another example of a trial court order mixing concepts of finality and nonfinality is the First District’s recent decision dismissing as untimely an appeal from an order on motion for summary judgment. In that case, Starling v. Allstate Prop. & Casualty Insurance, Co., 99 So. 3d 562 (Fla. 1st DCA 2012), motion for reh’g denied, the trial court entered an order titled “Order Granting Motion for Summary Judgment,” but language within the order stated that “summary judgment is hereby granted in favor of the defendant.” Five days later, the trial court entered a second order titled “Final Summary Judgment,” and the appellant filed her notice of appeal within 30 days of that order but more than 30 days from the first order. The First District held, however, that the first order was a final appealable order because it contained the requisite words of finality and that the second order was merely superfluous. Consequently, the appellate clock started ticking with the first order, rendering the notice of appeal from the second order untimely.

The point being that the language in the body of the order must be closely examined to determine whether the order grants the motion or actually dismisses the case. The latter is appealable, while the former is not.

Order Dismissing Case with Leave to Amend
Determining finality of an order dismissing a complaint can become complicated when the order grants leave to amend, which is not a final appealable order.8 The trial court may provide for an amendment by a specific date. And if no deadline is set, Fla. R. Civ. P. 1.140(a)(4) states that the amendment must be filed within 10 days of the order.

But what happens when the plaintiff does not amend? Does the order ripen into a final order at some point and, if so, when? The Third District Court of Appeal’s decision in Edward L. Nezelek v. Sunbeam Television Corporation, 413 So. 2d 51 (Fla. 3d DCA 1982), is a good starting point for instruction. In that case, the trial court dismissed the complaint for failure to state a cause of action and granted the plaintiff 20 days to file an amended complaint. The plaintiff did not amend within the 20 days, and the defendant obtained a final judgment by ex parte motion. The district court reversed, holding that notice was required before final judgment could be entered. The court reasoned that the motion filed by the defendant was in essence a motion for involuntary dismissal for continuing failure to state a cause of action, which requires notice to the opposing party. Significantly, the court rejected the notion that the order of dismissal served as notice that failure to amend within the 20 days would automatically result in dismissal with prejudice.9 Something further must occur to end the case and the judicial labor. Consequently, such an order is not a final appealable order and does not start the 30-day appellate clock ticking.

The First District made a similar point in Brandal v. State Farm Mut. Auto. Ins. Co., 310 So. 2d 780, 781 (Fla. 2d DCA 1975). There, the court held that an order dismissing a complaint with leave to amend by a certain deadline does not automatically transform into a final judgment on expiration of the deadline — even if the order states that the failure to amend will result in final judgment. The court relied upon the Florida Supreme Court’s decision in Hancock v. Piper, 186 So. 2d 489, 490 (Fla. 1966), which held 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…the [trial] court still has control of the litigation.”

The same is true when leave to amend is granted but nothing is stated about the consequences of a failure to amend. In such case, the failure to file an amended complaint does not transform the dismissal order into an appealable final judgment.10 If there is no amendment, the plaintiff must be given notice of the entry of final judgment because the plaintiff has the right (if not previously exercised) to take a voluntary dismissal at any time up to the entry of final judgment.11 In other words, if a complaint has been dismissed for failure to state a cause of action but leave to amend has been granted, the court may subsequently dismiss with prejudice only when 1) defendant gives separate notice to the plaintiff of a hearing on a motion for dismissal with prejudice or motion for entry of final judgment;12 or 2) the dismissal order sets a date for amendment and expressly provides that failure to amend within the stated time will result in dismissal with prejudice.13

If, however, the order of dismissal specifically states that dismissal with prejudice will result from failure to amend by the deadline, the trial court may enter final judgment without notice to the plaintiff if the deadline passes without an amendment.14 The final judgment is then appealable. Until the final judgment is entered, however, there is no final appealable order.

In short, an order dismissing a case with leave to amend is not a final appealable order, and the appellate clock does not start ticking until a final judgment of dismissal is entered.

When Complaint Is Dismissed and Leave Granted to Amend, Can the Plaintiff Stand on the Dismissed Complaint and File Notice of Appeal?
So, what happens if the trial court dismisses with leave to amend and the plaintiff does not want to amend? Can the plaintiff file an appeal from such an order? The answer is no, as the Florida Supreme Court explained in Dade County Classroom Teachers’ Ass’n v. State Board of Education, 269 So. 2d 657, 657-58 (Fla. 1972). In that case, the trial court dismissed the complaint with leave to amend within 30 days. The appellant did not amend or wait for the 30 days to expire, choosing instead to file a notice of appeal from the order of dismissal with leave to amend. The Supreme Court held that the order was not appealable and relinquished jurisdiction to the trial court to enter a final order from which appellants could then file a new notice of appeal.15

To the same effect is McGuire v. Florida Lottery, 17 So. 3d 1276 (Fla. 1st DCA 2009), in which the trial court dismissed the complaint without prejudice and further provided that the case would stand dismissed if the plaintiff did not amend by a date certain.16 The plaintiff chose not to amend and instead filed a notice of appeal from the dismissal order. The district court ruled, however, that the order was not a final appealable order because a separate final order still needed to be entered.17

The upshot is that a plaintiff who does not wish to amend cannot file an appeal from a dismissal that provides leave to amend. The better practice, as explained by the First and Second district courts of appeal, is for the plaintiff to advise the court that he or she does not intend to amend and request entry of a final order of dismissal.18 Until such an order is entered, the case is not ripe for appeal.

Order Dismissing Case Without Leave to Amend
An order dismissing the complaint for failure to state a cause of action is a final, appealable final order, if the order does not grant leave to amend.19 That is the case, regardless of whether the order includes the verbiage “with prejudice.”20 As many courts have noted, the words “with prejudice” are surplus and unnecessary for finality.21

In addition, an order dismissing a complaint that states it is without prejudice to filing a separate lawsuit is also a final appealable order.22 But if a dismissal order is entered without prejudice and amendment can be effected without filing a new lawsuit, the order may not be final. The First District made that very point in Hinote v. Ford Motor Co., 958 So. 2d 1009, 1010 (Fla. 1st DCA 2007), holding that an order dismissing a complaint without prejudice may not be final depending upon whether the order contemplates an amendment of the pleadings or a new case filing. Such an order requires further examination to determine whether the judicial labor has concluded. If amendment of the pleadings is possible, the order is a nonfinal, nonappealable order.23 If, however, it is clear from the context of the case that any further proceedings must be by a separate action, the order is final and starts the appellate time clock.24

Conclusion
There are many permutations and combinations of orders that may be entered as a result of a motion to dismiss a complaint. As Judge Klein observed in St. Vil, such orders can be a “trap for the unwary” because they can have a devastating effect on the timing for a notice of appeal.25 Close examination is required to determine finality for purposes of knowing when to file an appeal.26

As the case law makes clear, an order that grants a motion to dismiss, but does not dismiss the entire complaint, is not a final appealable order. And an order that dismisses the complaint with leave to amend is not appealable. An order dismissing the complaint without granting leave to amend is an appealable order and starts the appellate clock, regardless of whether the order includes the words “with prejudice.” But if such an order is entered “without prejudice,” it may or may not be final, depending upon whether amendment can be achieved without filing a new case. If the order does not fall neatly within these parameters and finality cannot be easily determined, the best course may be to file a notice of appeal even if it is later determined that the appeal is premature. Such an appeal should not prejudice the timeliness of a notice of appeal from a subsequently entered final, appealable order.27



1 Fla. R. App. P. 9.030(b)(1)(A); see also S.L.T. Warehouse Co. v. Webb, 304 So. 2d 97 (Fla. 1974).

2 Brandal v. State Farm Mut. Auto. Ins. Co., 310 So. 2d 780, 781 (Fla. 2d DCA 1975).

3 St. Vil, 714 So. 2d at 605.

4 Id.

5 Gries Invest. Co. v. Chelton, 388 So. 2d 1281, 1281 (Fla. 3d DCA 1980).

6 Hoffman v. Hall, 817 So. 2d 1057, 1058 (Fla. 1st DCA 2002).

7 Hayward, 793 So. 2d at 91.

8 Epley v. Washington County, 358 So. 2d 592 (Fla. 1st DCA 1978); Brandal, 310 So. 2d at 781.

9 Nezelek, 413 So. 2d at 54.

10 Brandal, 310 So. 2d at 781.

11 Hibbard v. State Road Dep’t of Fla., 225 So. 2d 901, 902 (Fla. 1969).

12 At such a hearing, the court must consider the factors set forth in Kozel v. Ostendorf, 629 So. 2d 817, 818 (Fla. 1994), as clarified, in deciding whether dismissal with prejudice is warranted or if there is a viable, lesser alternative to such severe sanction. See also Smith v. Panama City, 951 So. 2d 959, 962 (Fla. 1st DCA 2007).

13 See Haas v. Roe, 704 So. 2d 1117, 1118 (Fla. 2d DCA 1998); Sekot Labs., Inc. v. Gleason, 585 So. 2d 286, 287 (Fla. 3d DCA 1990), reh’g denied (Fla. 3d DCA 1991).

14 Id.

15 Dade County, 269 So. 2d at 657-58.

16 McGuire, 17 So. 3d at 1276-77.

17 Id. at 1277; see also Heekin v. Highsmith, 56 So. 3d 786, 787 (Fla. 1st DCA 2010).

18 Klein v. Pinellas County, 685 So. 2d 945, 946 (Fla. 2d DCA 1996); Ponton v. Gross, 576 So. 2d 910, 912 (Fla. 1st DCA 1991).

19 St. Vil, 714 So. 2d at 605, citing Carnival Corp. v. Sargeant, 690 So. 2d 660 (Fla. 3d DCA 1997); Stebnicki v. Wolfson, 584 So. 2d 177, 178-79 (Fla. 3d DCA 1991).

20 Salasky v. Humana Hosp. Kissimmee Auxiliary, Inc., 478 So. 2d 428 (Fla. 5th DCA 1985); see also Gries Invest., 388 So. 2d at 1282 (addition of words “with prejudice” to order granting motion to dismiss does not render the order final).

21 E.g., Hoffman, 817 So. 2d at 1058; see also State Farm Mut. Auto. Ins. Co. v. Open MRI of Orlando, 780 So. 2d 339, 340-41 (Fla. 5th DCA 2001) (verbiage that defendant “shall go hence without delay” is not required for finality).

22 Silvers v. Wal-Mart Stores, Inc., 763 So. 2d 1086 (Fla. 4th DCA 1999); see also Palm AFC Holdings v. Minto Communities, Inc., 766 So. 2d 436, 437-38 (Fla. 4th DCA 2000).

23 Hinote, 958 So. 2d at 1011, noting conflict with Carnival Corp. Carnival Corp., 690 So. 2d 660, 661 (Fla. 3d DCA 1997) (holding that an order dismissing a complaint with prejudice and silent on leave to amend was a final order and that the trial court lacked jurisdiction to entertain amended complaint filed more than 10 days after entry of dismissal order).

24 Id. at 1010-11.

25 St. Vil, 714 So. 2d at 605.

26 In multiparty litigation, other factors may come into play regarding finality, but such circumstances are not the subject of this article.

27 E.g., Benton v. Moore, 655 So. 2d 1272 (Fla. 1st DCA 1995) (dismissing appeal from order granting motion to dismiss as premature and without prejudice to the “right of the appealing party to file a timely notice of appeal after a final order has been entered”); cf. Dobrick v. Discovery Cruises, Inc., 581 So. 2d 645 (Fla. 4th DCA 1991) (relinquishing jurisdiction to trial court to obtain final judgment rather than dismiss prematurely filed appeal).


Carol A. Gart is a solo practitioner and is a board-certified appellate specialist. She served as a law clerk to Judge Barry J. Stone of the Florida Fourth District Court of Appeal from 1998 to 2001 and since that time has handled numerous state and federal appeals in private practice.

This column is submitted on behalf of the Appellate Practice Section, Caryn Lynn Bellus, chair; Brandon Christian, editor, and Chris McAdams and Kristi Rothell, assistant editors.

[Revised: 11-01-2013]