Benton v. Moore
| Decision Date | 06 June 1995 |
| Docket Number | No. 94-2582,94-2582 |
| Citation | 655 So.2d 1272 |
| Parties | 20 Fla. L. Weekly D1386 Tommy Lee BENTON, Appellant, v. Paul P. MOORE and Ricky Cloud, Appellees. |
| Court | Florida District Court of Appeals |
Tommy Lee Benton's circuit court complaint sought to recover damages for alleged negligence on the part of certain officials of the Department of Corrections in the handling of a disciplinary matter. On July 14, 1994, the trial court entered an order which provides in pertinent part:
THIS CAUSE came on before me on Defendants' Motion to Dismiss and Plaintiff's Response to Defendants' Motion to Dismiss. After reviewing the Defendants' Motion and Plaintiff's Response, it is
ORDERED AND ADJUDGED that Defendants' Motion to Dismiss is hereby granted.
Plaintiff filed a timely notice of appeal.
After the record on appeal was filed, this court directed appellant to show cause why the appeal should not be dismissed for lack of jurisdiction. That is, it has been held that an order which grants a motion to dismiss is neither a final order nor an appealable non-final order. Board of County Commissioners v. Grice, 438 So.2d 392 (Fla.1983); Johnson v. First City Bank, 491 So.2d 1217 (Fla. 1st DCA 1986). Appellant, in his response to the order to show cause, simply argues that the order was final.
Appellant has failed to distinguish Grice or Johnson or persuade us that the order is final or otherwise appealable. Accordingly, we dismiss the appeal for lack of jurisdiction. In doing so, we are not unmindful of Florida Rule of Appellate Procedure 9.110(m) which provides that if a notice of appeal is filed before rendition of a final order, "[b]efore dismissal, the court in its discretion may permit the lower tribunal to render a final order." We find that a proper exercise of our discretion in this and most cases in this posture is dismissal of the appeal at the time this court is called upon to resolve the jurisdictional issue unless a final order has been rendered by the trial court in the interim. In the absence of some exceptional circumstance, the appeal would be dismissed without prejudice, of course, to the right of the appealing party to file a timely notice of appeal after a final order has been rendered by the trial court. 1 As no exceptional circumstances are present in the case at bar, this...
To continue reading
Request your trial
-
Stanberry v. Escambia County
...notice of appeal after a final order [or an order granting a new trial] has been rendered by the trial court." Benton v. Moore, 655 So.2d 1272, 1273 (Fla. 1st DCA 1995). ALLEN, C.J., and PADOVANO, J., ...
-
Thomas v. Suwannee County, 98-1620.
...when the court decides the question of its jurisdiction is dismissal appropriate. See Fla. R.App. P. 9.110(m). Compare Benton v. Moore, 655 So.2d 1272 (Fla. 1st DCA 1995),with W.B.D., Inc.,382 So.2d at In the present case, the passage of time had cured the problem before the trial court act......
-
City of Tallahassee v. Big Bend PBA
...1 In granting the appellant additional time to obtain a final order, we are not receding from our opinion in Benton v. Moore, 655 So.2d 1272, 1273 (Fla. 1st DCA 1995). In Benton, we determined that, "[i]n the absence of some exceptional circumstance," the "proper exercise of our discretion ......
-
Hoffman v. Hall
...1097 (Fla.1987). We also decline appellant's suggestion to relinquish jurisdiction to permit entry of a final order. Benton v. Moore, 655 So.2d 1272 (Fla. 1st DCA 1995). BOOTH, BARFIELD and VAN NORTWICK, JJ., concur. ...
-
Jumping the gun: premature appeals in civil cases.
...(Fla. 5th D.C.A. 1998) (citing Puga v. Suave Shoe Corp., 417 So. 2d 678, 679 (Fla. 3d D.C.A. 1981)). (37) See, e.g., Benton v. Moore, 655 So. 2d 1272 (Fla. 1st D.C.A. 1995). (38) See, e.g., Mathews, 788 So. 2d at 1134; Benton, 655 So. 2d at 1273. (39) See, e.g, Mathews, 788 So. 2d at 113435......
-
Chapter 7-2 Motions to Dismiss
...v. Oken, 62 So. 3d 1129, 1134 (Fla. 2011); Alston v. Fla. Ins. Guar. Ass'n, 842 So. 2d 842, 842 (Fla. 2003) (citing Benton v. Moore, 655 So. 2d 1272, 1273 (Fla. 1st DCA 1995)).[7] See Fla. R. Civ. P. 1.130(a) (providing that "All . . . documents upon which action may be brought or defense m......
-
Chapter 7-2 Motions to Dismiss
...v. Oken, 62 So. 3d 1129, 1134 (Fla. 2011); Alston v. Fla. Ins. Guar. Ass'n, 842 So. 2d 842, 842 (Fla. 2003) (citing Benton v. Moore, 655 So. 2d 1272, 1273 (Fla. 1st DCA 1995)).[7] See Fla. R. Civ. P. 1.130(a) (providing that "All . . . documents upon which action may be brought or defense m......