Markwood Investments Limited v. Latam Investments, LLC

Third District Court of Appeal
State of Florida
Opinion filed November 4, 2015.
Not final until disposition of timely filed motion for rehearing.
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No. 3D15-1969
Lower Tribunal No. 10-20591
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Markwood Investments Limited, et al.,
Appellant,
vs.
Latam Investments, LLC, et al.,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Hon. Eric
William Hendon, Judge.
Berrio & Berrio, P.A., and Juan D. Berrio, Giorgio L. Ramirez, and Raul E.
Espinoza, for appellant, Markwood Investments Limited.
Moscowitz & Moscowitz, P.A., and Jane Moscowitz, for appellees, Carlos
Fuenmayor, Christian Lovera, and BancTrust & Co. Holdings.
Before WELLS, SHEPHERD, and LOGUE, JJ.
LOGUE, J.
The Appellees move to dismiss on the basis that the order on appeal is not
final. The order states that “this Court dismisses the First Amended Complaint in
this action without prejudice” for the express reason that the Appellant’s cause of
action is barred because “all elements of collateral estoppel under federal law have
been met in the Order on Trial and Corrected Final Judgment of the Bankruptcy
Court, issued December 11, 2014 and March 8, 2015, respectively, in Case
Number 10-02122-LMI.”
The order contains an unfortunate and unnecessary element of ambiguity
concerning whether it is final. First, it dismisses only the complaint (and not the
case) and only “without prejudice,” two indications the order is non-final. The
order then changes direction by finding that the Appellants’ claim is barred by
collateral estoppel, in which case the ability to amend is futile and all judicial labor
is at an end, indicating the order is final.
Such ambiguous orders create problems. First, they waste the time of the
judges, lawyers, and court clerks who must puzzle over their finality. Second, they
set a trap for the unwary. A party may be misled into thinking the order is non-
final, when it is not, and thereby fail to appeal timely. Conversely, a party may be
misled into thinking the order is final, when it is not, and thereby appeal
prematurely. See, e.g., Brown v. Hous. Auth. of City of Orlando, 680 So. 2d 620,
621 (Fla. 5th DCA 1996) (Griffin, J., concurring) (“Much time and energy has
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been wasted in this case . . . because of the lower court’s entry of an improper form
of order.”).
Many things in law are difficult. Writing a clear and unambiguous order of
dismissal is not one of them. See GMI, LLC v. Asociacion del Futbol Argentino,
40 Fla. L. Weekly D1969 (Fla. 3d DCA Aug. 26, 2015) (“An appropriate order
dismissing . . . might read ‘The motion to dismiss is granted. The plaintiff [name]’s
complaint and case against defendant [name] are dismissed. The court reserves
jurisdiction to consider a timely motion for costs and attorney’s fees.’”).
The ambiguity in the order at issue is similar to the ambiguity in the order at
issue in Peterson Homes, Inc. v. Johnson, 691 So. 2d 563 (Fla. 5th DCA 1997).
There, the appealed order dismissed a complaint without prejudice on the express
basis that the plaintiff’s cause of action for breach of contract was barred by the
defendant’s failure to make a required deposit. Id. at 564. In deciding the order was
final, this court reasoned that the trial court’s “determination, if correct, is fatal to
the breach of contract action, and the perceived flaw cannot be corrected in an
amended complaint.” Id. Following the reasoning of Peterson Homes, we hold that
if the trial court’s determination that Appellants’ claim is barred by collateral
estoppel is correct, such a defect cannot be remedied by amending the complaint
and, therefore, the order at issue is “sufficiently final to be reviewed by this court.”
Id.
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Motion denied.
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