Hinote v. Ford Motor Co.
| Decision Date | 25 May 2007 |
| Docket Number | No. 1D06-6657.,1D06-6657. |
| Citation | 958 So.2d 1009 |
| Parties | Thomas HINOTE; Angelo Moultrie; Nickolas Walker; and Donald Smith, Appellants, v. FORD MOTOR COMPANY; Ford Motor Company of Canada Limited; Magna International Incorporated; Magna Donnelly Corporation; Donnelly Corporation; and Magna Donnelly International, Inc., Appellees. |
| Court | Florida District Court of Appeals |
Neil D. Overholtz and Douglass A. Kreis of Aylstock, Witkin & Sasser, Pensacola, for Appellants.
David E. Canella of Carlton Fields, P.A., Orlando; Brian D. Boyle of O'Melveny & Myers, LLP, Washington, D.C.; Larry Hill of Moore Hill & Westmoreland, P.A., Pensacola; Wendy F. Lumish of Carlton Fields, P.A., Miami; and Christine R. Davis of Carlton Fields, P.A., Tallahassee, for Appellees.
Having considered the parties' responses to this Court's jurisdictional show cause order, issued on February 27, 2007, the appeal is hereby DISMISSED as premature.
The appellants brought this appeal from an order rendered on November 22, 2006, which ordered "that defendants' motion for judgment on the pleadings be and the same is hereby GRANTED and this complaint is dismissed without prejudice." Because it was unclear to the Court whether the "without prejudice" language was intended to allow the appellants to file a new complaint in a separate action or whether it was intended to allow the appellants to file an amended complaint in this action, it was not clear whether this order was a final appealable order. Compare Augustin v. Blount, 573 So.2d 104 (Fla. 1st DCA 1991)( dismissal without prejudice to amend complaint in same action is not final), with Carlton v. Wal-Mart Stores, Inc., 621 So.2d 451 (Fla. 1st DCA 1993)( dismissal without prejudice to raise issues in a separate future action is final). Therefore, we directed the appellants to show cause why this appeal should not be dismissed as premature. Subsequently, on March 9, 2007, the appellees filed a motion for leave to respond to this jurisdictional show cause order, which motion is hereby granted.
The test of finality is whether the action is disposed of by the order and whether a question remains open for judicial determination. See, e.g., Caufield v. Cantele, 837 So.2d 371, 375 (Fla.2002); Carlton, 621 So.2d at 452. Additionally, "[t]o be appealable as a final order, an order must contain unequivocal language of finality." Hoffman v. Hall, 817 So.2d 1057, 1058 (Fla. 1st DCA 2002). An order that dismisses an action "without prejudice" may or may not be a final order depending on whether it unequivocally disposes of the case. However, generally when such language "is used in an order granting a motion to dismiss the complaint, it signifies that the order is not a final order." See Philip J. Padovano, Florida Appellate Practice § 21.2 (2007 ed.2006). That is, the dismissal of the complaint is without prejudice to amend in the pending action. See, e.g., Augustin, 573 So.2d at 105.
Whether an order unequivocally brings an end to the case by dismissing the action without prejudice to bring another action may be determined by examining the context of the order. Id. The order of dismissal is clearly final when, for instance, the claim could only be pursued by filing a new complaint, Delgado v. J. Byrons, Inc., 877 So.2d 822 (Fla. 4th DCA 2004); or where there was a failure to serve the defendant, Carlton; or failure to exhaust administrative remedies, Hollingsworth v. Brown, 788 So.2d 1078 (Fla. 1st DCA 2001). In these cases the context of the order provides the additional indicia of finality for the order to be final. This Court has looked to the "statement of the evidence prepared pursuant to Florida Rule of Appellate Procedure 9.200," to determine that an order was entered without prejudice to file a new action. Eagle v. Eagle, 632 So.2d 122, 123 (Fla. 1st DCA 1994). On the other hand, where it remains unclear whether the order is intended to be final or nonfinal, it is...
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...An order dismissing an action without prejudice and without granting leave to amend is a final order. See Hinote v. Ford Motor Co., 958 So.2d 1009, 1010–11 (Fla. 1st DCA 2007) (“The order of dismissal is clearly final when, for instance, the claim could only be pursued by filing a new compl......
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...dismissal was solely for failure to exhaust administrative remedies and explicitly “without prejudice.” See Hinote v. Ford Motor Co., 958 So.2d 1009, 1010–11 (Fla. 1st DCA 2007) (“The order of dismissal is clearly final when, for instance, the claim could only be pursued by filing a new com......
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