Third District Court of Appeal
State of Florida
Opinion filed August 26, 2015.
Not final until disposition of timely filed motion for rehearing.
________________
No. 3D15-1678
Lower Tribunal No. 14-21682
________________
GMI, LLC, etc.,
Appellant,
vs.
Asociacion del Futbol Argentino, etc.,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Jose M.
Rodriguez, Judge.
Salpeter Gitkin, LLP, and James P. Gitkin and Joseph H. Rose (Fort
Lauderdale), for appellant.
Atkinson & Brownell, P.A., and John Bond Atkinson and Krystina N. Jiron;
Dorsey & Whitney, LLP, and Juan C. Basombrio and Karen A. Morao (Costa
Mesa, Calif.), for appellee.
Before SALTER, FERNANDEZ, and LOGUE, JJ.
LOGUE, J.
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 appealable, 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.
2
A model for an order dismissing a case is 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(l) 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.
3