Dobrick v. Discovery Cruises, Inc.Dobrick v. Discovery Cruises, Inc.
Betsy DOBRICK and Dennis Dobrick, Her Husband, Appellants,
v.
DISCOVERY CRUISES, INC., a Florida Corporation, Appellee.
District Court of Appeal of Florida, Fourth District.
Harry M. Hausman of Cohn, Hausman & Cohn, P.A., Pembroke Pines, for appellants.
Domingo C. Rodriguez, Rodriguez, Horr, Aronson & Blanck, P.A., Miami, for appellee.
EN BANC OPINION ON MOTION TO DISMISS
PER CURIAM.
The Notice of Appeal in this case purports to appeal an order denying a motiоn for rehearing. We treat this as an appeal from the underlying disposition of *646 the case, rehearing of which was sought by the motion. See Austin v. B.J. Apparel Corp.,
The further difficulty is that the underlying disposition was an order granting a motion for summary judgment. This court, in Russell v. Russell,
In White Palms of Palm Beach, Inc. v. Fox,
We recede from the second aspect of Russell and now hold that where an appeal has been filed prematurely in cases such as this one the appeal will not be dismissed, but the appellant will be given an opportunity tо obtain a final, appealable order, and thereafter proceed in this court without thе necessity of filing a new appeal. In so holding, we revert to the philosophy of Sloman v. Florida Power and Light Co.,
We certify the following questions to the supreme court as being of great public importance:
Whether an order simply granting a motion to dismiss (either with or without prejudice) or granting a motion for summary judgment, is a final, appealable order; and if it is not
Where а notice of appeal is filed prematurely, may the district courts of appeal prоvide an opportunity for the appellant to obtain a "final judgment" in the lower tribunal rather than simply dismissing the appeal, either under an extension of the rationale of Williams v. State,324 So.2d 74 (Fla. 1975), or by virtue of its inherent judicial power, or upon some other rationale?
We deny the motion to dismiss.
HERSEY, C.J., and DOWNEY, ANSTEAD, GLICKSTEIN, DELL, STONE, WARNER, POLEN and GARRETT, JJ., concur.
FARMER, J., dissents with opinion, with which LETTS and GUNTHER, JJ., concur.
FARMER, Judge, dissenting.
Relinquishing jurisdiction we do not have, we undertake by today's decision to advise future litigants who appeal non-reviewable non-final orders how they might properly invoke our jurisdiction and, at the sаme time, suggest to trial judges that even though they may not be ready to do so they enter the order deemed appealable so that we can thus properly assert our review powers. Because I believe that we got it right in Russell v. Russell,
There is among lаymen a general perception of lawyers that we are trained in grasping obscure teсhnical details beyond the ken of non-lawyers. We are pictured as drawing tediously slight distinctions in legal аrcana which only we few can comprehend. They think we speak in a language known only to us (and a few clerics) about some mystic truths which only our membership in the legal club allows us to know.
Whatevеr maybe the truth underlying these perceptions, there is or should be a certain irreducible minimum of legal knowledge which we must insist that all lawyers have. In other words, there are some small things that we should suffer all lаwyers to get right. Without knowing all that is embraced in that minimum, I can confidently say that it should include at least the knоwledge that we do not review orders which merely grant motions to dismiss or summary judgment.
There is no mystery attached to the rule. It stands on a proposition which if most lawyers thought about for a moment would *647 leap into the mind's eye. Such orders are written in the sand by the trial judge: they can be changed or even withdrawn аt any time until the judge enters a final order disposing of all claims. Why then review an order the judge might want to change? Why bind a trial judge by interlocutory review and thus the law of the case to a decision he or she might want to rehear, modify or even vacate before final judgment?
I am unable to perceive any widespread inability to grasp these self-evident truths. Nor can I see any crisis in our clerk's office created by appeals from orders granting dismissals or adjudications without trial. It is true that dismissal of any appeal even one so clearly improper as these requires the attention of three of us. But that is hardly causing any of us to spend so much time on these unauthorized appeals that we cannot reach the ones properly brought.
We are not school teachers, now correcting this litigant, now counseling that lawyer. We are limited by our constitution to review of a specified class of cases. That review does not include instructing or advising litigants on how they can bring us their business.
I think wе encourage careless and shoddy lawyering by adopting the kind of rule we do today. If we institutionalizе the practice on this class of cases, why not on another, and then another? How will we draw the line on those classes that we won't help get here? How indeed will we contain what we start todаy? The answer surely is: if we don't start it, we won't later have to distinguish it. If we hold our lawyers to the highest standards, maybe we can also thereby raise ourselves.
As Sam Goldwyn might have said, include me out on this one. I dissent.