GMI, LLC v. Asociacion Del Futbol Argentino

• Decision Date: 26 August 2015
• Docket Number: No. 3D15–1678.,3D15–1678.
• Citation: 174 So.3d 500 (Mem)
• Parties: GMI, LLC, etc., Appellant, v. ASOCIACION DEL FUTBOL ARGENTINO, etc., Appellee.
• Court: Florida District Court of Appeals

174 So.3d 500 (Mem)

GMI, LLC, etc., Appellant

v.ASOCIACION DEL FUTBOL ARGENTINO, etc., Appellee.

No. 3D15–1678.

District Court of Appeal of Florida, Third District.

Aug. 26, 2015.

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.

Opinion

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.

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...