Orders on motions to dismiss for failure to state a cause of action - when are they final for purposes of filing notice of appeal?

• Author: Gart, Carol A.
• Position: Florida

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...