Third District Court of Appeal
State of Florida
Opinion filed March 13, 2019.
Not final until disposition of timely filed motion for rehearing.
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No. 3D18-1078
Lower Tribunal No. 15-26465
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Ancla International, S.A.,
Appellant,
vs.
Tribeca Asset Management, Inc.,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Miguel M. De
La O, Judge.
Sardi Law, PLLC, and Carlos E. Sardi, for appellant.
Holland & Knight LLP, and Rebecca M. Plasencia, Adolfo E. Jimenez, and
L. Vanessa Lopez, for appellee.
Before FERNANDEZ, and LINDSEY, JJ., and LEBAN, Senior Judge.
LINDSEY, J.
On Order to Show Cause
Ancla International, S.A., filed a notice of appeal seeking review of an order
titled “Proposed Order Granting Motion to Dismiss[.]” The notice characterizes
the order under review as a final order. See Fla. R. App. P. 9.110(d) (“The notice
shall contain . . . the nature of the order to be reviewed.”). Because an order that
merely grants a motion to dismiss is not a final, appealable order, we ordered the
parties to show cause why the appeal should not be dismissed. See GMI, LLC v.
Asociacion del Futbol Argentino,
174 So. 3d 500, 501 (Fla. 3d DCA 2015) (“An
order that merely grants a motion to dismiss is not a final order. . . . 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.”).
The parties have failed to show cause why this appeal should not be
dismissed as premature;1 however, we exercise our discretion and grant Ancla
1 Ancla argues that the trial court “wrongly labeled the order[,]” which “is not
a basis to make an order non-final and unappealable.” While it is true that the title
of the order is not controlling, here the language in the order itself does not enter a
dismissal or establish finality. Cf. Boyd v. Goff,
828 So. 2d 468, 469 (Fla. 5th
DCA 2002) (finding that an “Order Granting Summary Judgment” was
nevertheless final because it contained language entering final judgment in favor
defendant).
Both parties also contend that the order is appealable as a non-final order
pursuant to Rule 9.130(a)(3)(C)(iv) because the order determines “entitlement of a
party to arbitration[.]” The parties only provide us with examples of interlocutory
orders—such as orders denying motions to compel arbitration. See Philip J.
Padovano, Florida Appellate Practice § 24:2 (2018 ed.) (“Rule 9.130 of the Florida
Rules of Appellate Procedure authorizes interlocutory review by appeal as to a
limited class of pretrial orders that could not be effectively reviewed on appeal
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thirty (30) days to obtain a final order from the trial court and to file an amended
notice of appeal. See Fla. R. App. P. 9.110(l).2 Failure to comply with this order
will result in the dismissal of this appeal. Oral argument in this case, which is set
for Monday, March 18, 2019, is hereby cancelled but may, in this Court’s
discretion, be rescheduled upon the filing of a final order on appeal.
from the final judgment . . . .”). Here, the dismissal can effectively be reviewed on
appeal from a final judgment; the appeal is simply premature because the trial
court failed to enter a dismissal.
2 Rule 9.110(l) Premature Appeals. Except as provided in rule 9.020(h), if a
notice of appeal is filed before rendition of a final order, the appeal shall be subject
to dismissal as premature. However, the lower tribunal retains jurisdiction to
render a final order, and if a final order is rendered before dismissal of the
premature appeal, the premature notice of appeal shall be considered effective to
vest jurisdiction in the court to review the final order. Before dismissal, the court in
its discretion may grant the parties additional time to obtain a final order from the
lower tribunal.
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