Hall v. Mathews

1 So. 3d 379, 2009 Fla. App. LEXIS 666, 2009 WL 212067

Opinion

PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of December 2, 2008, the Court has determined that the appeal is premature. Because the order on appeal merely grants a motion to dismiss but does not actually dismiss the action, it is not a final order. See Benton v. Moore, 655 So.2d 1272 (Fla. 1st DCA 1995). Furthermore, it appears to the Court that the motion was granted without prejudice to the appellant’s right to amend the complaint to demonstrate compliance with statutory pre-suit screening and notice requirements. An order that dismisses an action without prejudice to amend in the same action is not final. See Augustin v. Blount, 573 So.2d 104 (Fla. 1st DCA 1991); of. Carlton v. Wal-Mart Stores, Inc., 621 So.2d 451 (Fla. 1st DCA 1993)(holding that order is final where context of order makes clear that dismissal is without prejudice to file new action). The appeal is hereby dismissed without prejudice to the appellant’s right to seek appellate review upon entry of a final order.

HAWKES, C.J., WEBSTER and DAVIS, JJ., concur.