COSTA DEL MAR INC v. HANEY (2021)

Order Striking Notice of Dismissal of Appeal Without Prejudice

On February 25, 2020, the parties filed a “Joint Notice Regarding Settlement and Motion to Stay Case-Related Deadlines” in this case. This notice indicated that the parties had “reached a complete settlement of the instant class action,” but contended that they could not dismiss this appeal without first obtaining approval of the class settlement by a federal court considering the same issue on a nationwide basis. We granted the stay and ordered regular status reports. These reports generally indicated the imminence of the necessary federal court action. In the April 28, 2021, status report, the parties indicated that the federal court held a hearing five days earlier, that it had taken the matter under advisement, and that it had stated that an order would be forthcoming. However, no order forthcame.

Finally, some six months later, we asked for another status report advising whether a ruling on their motion for final approval of the settlement in the federal case had been filed. We told the parties that we intended to dissolve the stay and decide this appeal on the merits if the appeal were not dismissed. In response, the parties indicated that the federal court had deferred part of its ruling on the request for approval of the settlement and that it was unknown when it would rule. Shortly thereafter, Appellant Costa Del Mar provided this court with a “notice of the voluntary dismissal of this appeal without prejudice pursuant to Florida Rule of Appellate Procedure 9.350(a).”

Rule 9.350(a) is entitled “Dismissal of Causes When Settled,” and requires the parties to “immediately notify the court by filing a signed stipulation for dismissal.” Because the parties have failed to file a stipulation, we strike the notice under this provision.

It appears that Costa Del Mar meant to file its notice under Rule 9.350(b), which sets forth procedures for “Voluntary Dismissal.” But Costa Del Mar's notice comes with the condition that the dismissal be “without prejudice.” Presumably, Costa Del Mar wishes to refile the appeal at a later date after the federal settlement is concluded. Because this course is improper, we strike the notice under this provision as well.

With regard to final orders, “[a] party has no right to condition a voluntary dismissal of an appeal from a final order on the right to refile the appeal at a later date and, in many cases, the appeal time will have expired by the time the dismissal is filed.” Philip, J. Padovano, 2 Fla. Prac., Appellate Practice § 15:1 (2021 ed.). The Second District explained this rule in Hammerl v. State, 779 So. 2d 410 (Fla. 2d DCA 2000), where the appellant asked the court to dismiss his appeal “without prejudice, expressly reserv[ing] the right to file a timely appeal at some future date.” Id. at 411. The court declined, explaining that “a district court has no authority to alter or condition the legal effect of an order dismissing any appeal.” Id. “If a final appeal is dismissed after the time for appeal has expired, this court's order of dismissal cannot reserve to the appellant any right for a subsequent appeal of the same order.” Id.

However, the order under review here is not a final order; we are reviewing a nonfinal order granting class certification. See Fla. R. App. P. 9.130(a)(3)(C)(vi). In such a case, a dismissal may technically be “without prejudice” in that “a voluntary dismissal of an appeal from a nonfinal order would not adjudicate the issues raised in the appeal.” 2 Fla. Prac., Appellate Practice § 15:1. But this exception means only that the nonfinal issue may be raised in a later appeal of a final order. See, e.g., Miskoff v. Cross Fox Condo. Ass'n, Inc., 460 So. 2d 987, 988 (Fla. 4th DCA 1984) (holding that dismissal of an interlocutory appeal “will not bar subsequent review of the issue on full appeal”); Wagner v. Bieley, Wagner & Associates, Inc., 263 So. 2d 1 (Fla. 1972) (same). See also Hammerl, 779 So. 2d at 411 (“[I]f a nonfinal appeal is voluntarily dismissed prior to its disposition on the merits, this court's order of dismissal does not restrict the appellant's ability to raise the same issues in a later final appeal. Our orders of dismissal simply do not affect these jurisdictional rights.”). This exception does not mean that the nonfinal appeal itself may be later revived after it is dismissed. See generally Id. (noting that an “attempt to preserve a right to a second appeal is not authorized by the Florida Constitution, the Florida Rules of Appellate Procedure, or Florida Statutes”). As such, Costa Del Mar may not refile an appeal of the same nonfinal order after it has voluntarily dismissed it.

For these reasons, we strike Costa Del Mar's Notice of Dismissal of Appeal Without Prejudice.^* Costa Del Mar may file an unconditional notice of voluntary dismissal, as set forth above. Consistent with our order of November 3, 2021, if the parties do not dismiss this appeal under either Rule 9.350(a) or Rule 9.350(b) within ten days of the date of this order, the Court intends to dissolve the stay and decide this appeal on the merits.

FOOTNOTES

FOOTNOTE.   While this rule of law applies to voluntary dismissals under rule 9.350(b), the same would hold true if the parties attempted to dismiss the appeal in accordance with rule 9.350(a). A party cannot revive an appeal following a dismissal under that provision by claiming that the dismissal was “without prejudice.”

Winokur, J.

M.K. Thomas, J., and Colaw, James M., Associate Judge, concur.