13 Fla. L. Weekly Supp. 307a
Appeals — Non-final orders — Insurance — Personal injury protection — Order granting motion to strike complaint as sham is not appealable final order where order does not include words of dismissal or final judgment — Even if subsequent order denying motion for rehearing could make original order striking pleadings a final appealable order, insurer abandoned motion for rehearing by filing appeal, and trial court was without jurisdiction to enter order denying rehearing — Court will dismiss defective appeal of non-appealable order rather than temporarily relinquish jurisdiction for entry of appealable order
PRISCILLA RIVERA, Appellant, v. ALLSTATE PROPERTY & CASUALTY INSURANCE COMPANY, Appellee. Circuit Court, 9th Judicial Circuit (Appellate) in and for Orange County. Case No. CVA1 05-104. January 30, 2006. Counsel: Peter A. Shapiro, The Law Offices of Peter A. Shapiro & Bruce H. Kauffman, P.A., Orlando. Julian Gonzalez, Orlando.
FINAL ORDER DISMISSING APPEAL FOR LACK OF JURISDICTION
THIS MATTER came before the Court on consideration of the Notice of Appeal, filed on December 16, 2005, and “Appellant’s Response to the Court’s Order to Show Cause Why Appeal Should not Be Dismissed for Lack of Jurisdiction,” filed on January 11, 2006. The Court finds as follows:
The Notice of Appeal in this case indicates that Appellant wishes to appeal the trial court’s order granting Appellee’s motion to strike the pleadings as a sham. The order is not an appealable order. Although the order grants the motion to strike the pleadings, it does not include words of dismissal or final judgment.
An order that lacks words of actual dismissal is not appealable because it is not a final order. Dep’t of Revenue v. Bander, 702 So. 2d 1341, 1342 (Fla. 5th DCA 1997) (dismissing appeal from order that simply stated the motion to dismiss was granted). The appellate court does not have jurisdiction to review an order that simply dismisses a complaint. See id. In addition, the Court does not have jurisdiction to review an order that only grants a motion for summary judgment. See, e.g., Arcangeli v. Albertson’s, Inc., 550 So. 2d 557, 558 (Fla. 5th DCA 1989) (order that merely grants motion for summary judgment is not appealable final judgment); Bowman v. State Farm Mut. Auto. Ins. Co., 599 So. 2d 273, 274 (Fla. 5th DCA 1992) (order that merely grants motion for summary judgment is not appealable order); BCH Mech., Inc. v. McCoy, 584 So. 2d 1067, 1067 (Fla. 5th DCA 1991) (order that grants motion for summary judgment is non-final, non-appealable order).
Appellant argues that both the order granting the motion to strike Appellant’s complaint and the order denying Appellant’s motion for rehearing, when considered together, render the orders final, appealable orders.
First, the order granting the motion to strike is not an appealable order because it does not contain any words of dismissal or final judgment. Second, even if the order on the motion for rehearing could make the original order a final, appealable order, which it does not, by filing the notice of appeal, Appellant abandoned the motion for rehearing, and the trial court was without jurisdiction to enter an order thereon. Farr v. Farr, 840 So. 2d 1166, 1166-67 (Fla. 2d DCA 2003) (motion for rehearing is abandoned by filing notice of appeal and trial court loses jurisdiction to enter order on it). Thus, the two trial court orders do not vest this Court with jurisdiction.
In addition, the Court denies Appellant’s request to relinquish jurisdiction to the trial court so that the trial court may enter a final appealable order. As stated in the case cited by Appellant in her response to the Court’s Order to show cause why this appeal should not be dismissed, the Court will dismiss the appeal when such a situation occurs, rather than relinquishing jurisdiction to the trial court to enter a final appealable order. Allen v. Fla. Dep’t of Military Affairs, 576 So. 2d 971, 972 (Fla. 5th DCA 1991) (“we abandoned the . . . remedy of a temporary relinquishment of jurisdiction to allow the parties to obtain a final appealable order and opted instead for outright dismissal of defective appeals from non-appealable orders.”).
Based upon the foregoing, it is hereby ORDERED and ADJUDGED that this appeal is DISMISSED. The Clerk of Court shall close this case forthwith. (JOHN MARSHALL KEST, JANET C. THORPE, and A. THOMAS MIHOK, JJ.)
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