# Third District Court of Appeal

State of Florida

Opinion filed August 26, 2015

. Not final until disposition of timely filed motion for rehearing.

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No. 3D15-1678

Lower Tribunal No. 14-21682

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### 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.

2A 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