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Premature appeals and setting a case for trial.

Thanks to Bretton Albrecht for his excellent article, "Jumping the Gun: Premature Appeals in Civil Cases," (March). At first I thought there were a few typos in the section titled Orders Granting Motions to Dismiss. After rereading it several times, I think he is correct, but his wording can be misread. Once you have passed the threshold issue of whether the order explicitly dismisses something (as opposed to only explicitly "granting" a motion to dismiss, which implies that another order may be coming to accomplish the actual dismissal), the issue is what it is that is being dismissed. At that stage I would put it more simply: If the order dismisses the complaint only and there is permission to amend, it is not appealable. If the order dismisses the complaint without leave to amend, or dismisses the action, it is.

The term "with [or without] prejudice" is an unfortunate shortcut which creates confusion. The question is with or without prejudice to what?

If an action is dismissed with or without prejudice, it visually means "with [or without] prejudice to plaintiff reasserting the same cause of action in another lawsuit." Either one of those dismissals is final, because it ends the judicial labor in the current action. Whether that dismissal is with or without prejudice is significant as to whether the plaintiff may file a new action, but either way, the order is ready to be appealed.

If a complaint is dismissed "without prejudice," that usually means "without prejudice to plaintiff amending in this same action." In that case, the action is not yet over and the order is not appealable. It would be clearer for the court to say, "The complaint is dismissed. Plaintiff may amend within 10 days after the date of this order."

If a complaint is dismissed "with prejudice," that usually means that no amendment is being permitted, and probably dismissal of the action at that point is what the judge really intends (assuming that, for example, there is no independent counterclaim still pending). It would be clearer to say, "The complaint is dismissed without leave to amend, and the action hereby dismissed."

Regarding another article in the March issue, I totally agree with the analysis of the case law in Mike Trentalange's "Setting a Case for Trial: Rule 1.440 Means What It Says." However, I disagree that Rule 1.440(b) is clear. The words "and ready to be set for trial" subject the rule to two possible interpretations.

As written, the rule is subject to the interpretation that two things are needed to set the trial: first, the action must be at issue; second, the case must be "ready to be set for trial." I believed for years that those were two separate elements, and even when the pleadings were closed I had objected to notices for trial if (for example), discovery had not yet been completed. When I finally read the case law, I realized I was wrong, but I still see many attorneys coming to that incorrect, but understandable, conclusion.

Under the case law, once the action is at issue, it is, by definition, "ready to be set for trial," so the addition of that clause in the rule adds nothing except an opportunity to misunderstand it. If the Supreme Court agrees with the case law, Rule 1.440(b) should be amended to read, "Thereafter any party may file and serve a notice asking the court to set the action for trial." Or, the word "therefore" could be inserted after the words "is at issue and" in the existing rule.

MATT ELLROD, New Port Richey
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Title Annotation:Letters
Author:Ellrod, Matt
Publication:Florida Bar Journal
Article Type:Letter to the editor
Date:Apr 1, 2010
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