       Third District Court of Appeal
                               State of Florida

                          Opinion filed October 1, 2014.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D13-2613
                         Lower Tribunal No. 10-60555
                             ________________


                                Carla Branch,
                                    Appellant,

                                        vs.

Lee Anne O’Selmo, individually and First Caribbean International
Bank d/b/a First Caribbean International Bank (Barbados) Ltd., a
                         foreign entity,
                                    Appellees.



     An Appeal from a non-final order from the Circuit Court for Miami-Dade
County, Spencer Eig, Judge.

     Max R. Price, Dennis Grossman and Jay Warman, for appellant.

      Cooney Trybus Kwavnick Peets and Warren B. Kwavnick (Fort
Lauderdale), for appellees Lee Anne O'Selmo and First Caribbean International
Bank; Holland & Knight, Lee P. Teichner and Frances G. De La Guardia, for
appellee First Caribbean International Bank.


Before WELLS, SUAREZ and SALTER, JJ.
      WELLS, Judge.

      Carla Branch, the plaintiff below appeals from an order denying her motion

to amend her complaint, effectively dismissing her personal injury action with

prejudice.   Because we find that the court below did not lack jurisdiction to

entertain her motion, we reverse.

      This action stems from an auto accident which occurred in November of

2006 in which Branch, while a passenger in a car driven by a co-worker during a

business trip, was seriously injured. Branch and her co-worker reside in Barbados

where their employer, First Caribbean International Bank is located.

      In advance of the running of the three year statute of limitations on personal

injury claims in Barbados, Branch in November of 2009, filed suit against her co-

worker and the bank in Barbados. After filing this action, Branch took no further

actions to advance it.

      On November 19, 2010, in advance of the expiration of the applicable

Florida statute of limitations, Branch brought suit against the same defendants

here. The Florida action thereafter proceeded in the court below where over a

period spanning two years it was actively litigated with numerous depositions and

other discovery being undertaken. In September of 2012, after this matter was set

for trial for the one week trial period commencing October 29, Branch’s co-

worker, defendant Lee Anne O’Selmo filed a motion to dismiss Branch’s



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complaint.    That motion asserted only that Barbados would be a more

“appropriate” forum in which to resolve this matter and that “[i]f the instant action

is tried, the Barbados action will not be resolved and the Plaintiff can try again to

recover against the Defendants.”

      Despite the fact that O’Selmo’s motion, which must be characterized as a

forum non conveniens motion, was two years too late and that no authority was

cited for the proposition that two actions on the same claim may not be maintained

in different jurisdictions simultaneously, the court below granted the motion. The

court abated the action for 30 days for Branch to either dismiss her pending

Barbados action with prejudice or provide the court with documents that

demonstrated that the Barbados case “has been abated [and] that any judgment . . .

of the case in Florida would be res judicata in the action pending in Barbados.”

      When Branch failed to satisfactorily comply, O’Selmo and the bank moved

for a dismissal with prejudice reasserting its now long waived forum non

conveniens claim and arguing that Branch’s failure to comply with the trial court’s

prior order warranted dismissal as a sanction:

            Plaintiff’s willful noncompliance with the court’s January 15,
      2013 order warrants dismissal of this action. Warriner v. Ferraro, 177
      So. 2d 723 (Fla. 3d DCA 1965). Where a party’s failure to comply
      with a court order is willful and not due to mistake, inadvertence or
      excusable neglect, dismissal is appropriate. Diaz v. Bushong, 619 So.
      2d 1020 (Fla. 3d DCA 1993).




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      On April 29, 2013, following a hearing at which Branch advised the court

that she could not abate the Barbados action in a manner that would satisfy the

requirements of the prior order, the court below entered an order granting the

motion “in part,” dismissing the action “without prejudice” and allowing Branch to

file a motion to amend her complaint in 20 days if she dismissed the Barbados

action in such a way that it did not permit her to seek additional damages in

Barbados:

      Granted in part. I dismiss the pending action in Florida but that
      dismissal is without prejudice and can be re-brought if the action in
      Barbados is dismissed in such a way that does not permit the Plaintiff
      to seek additional damages in Barbados. Plaintiff has twenty days to
      move for leave to amend.

On May 15, within the 20 days allotted, Branch filed a motion for leave to amend

in which she alleged that she had fully complied with the trial court’s April 29

order by “dismissing the Barbados case.” Attached to this motion and incorporated

therein was a Notice of Discontinuance filed in the Barbados action in which

Branch discontinued—that is, dismissed—the Barbados action.

      In response, O’Selmo, while conceding that the April 29 order was “without

prejudice” to filing an amended complaint, argued that Branch could not amend

her complaint because the April 29 order dismissed this action and that it could not

be resurrected by timely amendment because the statute of limitations had now run




                                         4
on Branch’s claim.        Alternatively, O’Selmo claimed that the Notice of

Discontinuance filed in the Barbados case did not effectively terminate that case.

      At a hearing conducted on July 18, 2013, Branch adduced uncontroverted

expert testimony that the Notice of Discontinuance that she filed in the Barbados

action unequivocally terminated that action.       However, accepting O’Selmo’s

argument that the April 29 order had dismissed the entire action, depriving the trial

court of jurisdiction to entertain an amendment to the complaint now that the

appeal time from that order had run, the court denied Branch’s motion to amend,

leaving Branch, now that the statute of limitations had run in Florida, with no

forum in which to seek recovery:

      ORDERED AND ADJUDGED that Plaintiff’s Motion is hereby
      DENIED. The instant action cannot be amended as it has been
      dismissed. See Derma Lift Salon, Inc. v. Swanko, 419 So. 2d 1180
      (Fla. 3d DCA 1982) (holding that when a trial court dismisses an
      action, even without prejudice, further jurisdiction of the trial court is
      terminated except upon the timely filing of a motion for rehearing);
      Golden Gate Homes, L.C. v. L& G Eng’g Servs., Inc., 974 So. 2d 489
      (Fla. 3d DCA 2008) (holding that after trial court dismissed the
      complaint, the action could not be reinstated because the “trial court
      lost jurisdiction over the cause after the ten-day period for rehearing
      expired”); City of Sanibel v. Maxwell, 925 So. 2d 486 (Fla. 2d DCA
      2006) (holding that where the trial court dismissed the amended
      complaint and no appeal was taken, the trial court “exceeded its
      subject matter jurisdiction” by granting leave to file a second amended
      complaint).

      We reverse the order on appeal. While the April 29 order was not a model

of clarity, it was neither intended to dismiss, nor dismissed, the Florida action in



                                          5
such a manner as to amount to a final judgment, such that the trial judge would be

divested of jurisdiction to allow the amendment sought. At best, the order abated

the Florida action, allowing plaintiffs twenty days to prove dismissal of the

Barbados action. Any question as to this is resolved by the trial court’s statements

at the April 29 hearing while making its ruling and entering the order at issue:

             MR. PRICE [COUNSEL FOR BRANCH]: What I want to
      clarify, in terms of your ruling, so we walk out of here, know exactly
      where we’re at, we’re in a situation where they’ve already exchanged
      documents in Barbados, effectively dismissing the case there. I don’t
      want to be in a situation where now this order is somehow used
      against me to say, oh, the Judge dismissed your case here, now the
      Judge can do nothing further, and now we’ve got a dismissal in
      Barbados, now we [h]ave – because we’re dealing with statute of
      limitations in both countries, and obviously, the effect of this is not to
      put [Branch] in the position where both cases are dismissed in both
      jurisdictions. I certainly don’t want to be in that.

             ....

            But I don’t want to be in a situation where we’ve dismissed
      Barbados, but I’m also faced with a dismissal here, and now we have
      nothing anywhere.

             ....

            THE COURT: . . . I’ve dismissed today without prejudice. So
      like many lawsuits that are pending, where there’s no complaint
      pending, but there’s still an action pending, so that will be the state in
      Florida at the moment, it will require a dismissal in Barbados, that,
      from what I’m hearing, you all may disagree as to the nature of that
      dismissal. Then you will have to file – plaintiff will have to file a
      motion for leave to file an amended complaint, in which you attempt
      to prove to me, through whatever method you choose, Barbadian
      expert witnesses, Barbadian statutes, et cetera, that the dismissal in
      Barbados precludes the plaintiff from seeking additional damages in


                                          6
Barbados. You’re not going to have to prove to me that she’s not
going to be able to collect her Florida judgment.

      MR. PRICE: Okay.

      THE COURT: The defendants are going to attempt to prove to
me, on that day, that there’s defects in that – may attempt to prove to
me that there are defects in the Barbadian dismissal and that I
shouldn’t let you file the amended complaint. And then on that day,
we’ll have to – I’ll have to decide whether to let you file the amended
complaint or not. But there will have to be some interim period in
which there’s no complaint pending anywhere.

      ....

      MR. TEICHNER [COUNSEL FOR THE BANK]: . . . But
presently, the Florida lawyers here don’t have a case because it’s been
dismissed.

      MR. PRICE: That’s just it. What they want now is because the
dismissal’s already happened in Barbados.
      ....

       THE COURT: In any event, I don’t agree with Mr. Teichner
that there is not a case. There is a case. There is still a case, with this
case number. There is not a complaint pending. And, you know, now
that I’m thinking about it, maybe I should have some kind of deadline.
We don’t allow cases without complaints to stay open indefinitely.
How much time do you want to try to accomplish the dismissal in
Barbados and to bring the motion to amend?

      ....

      MR. PRICE: Ten days.

      THE COURT: Okay. I think we should add that. And I think
we should give you more than ten days –

      ....



                                    7
            Double ten days. Twenty days. So let me add that to the order.
      I wish to add that, the defendant – plaintiff has twenty days to attempt
      to move to amend. You can’t amend as a matter of right, you have to
      move for leave to amend.

      In sum, reviewing the order as well as the trial judge’s comments in making

its ruling we conclude the order at issue did not dismiss the action or case, but only

dismissed the complaint with leave to amend upon a showing that the Barbados

action had been terminated. The September 23, 2013 order denying Branch’s

motion to amend based on a determination that the court lacked jurisdiction to

consider that motion by virtue of dismissal of this action on April 29, is, therefore,

contrary to both the letter and certainly the intent of that order.

      It also is incorrect as a matter of law. “An order of dismissal granting leave

to amend is interlocutory in nature until expiration of the amendment period and

entry of final judgment by the trial court.” Dade County Classroom Teachers’

Ass’n, Inc. v. State Board of Education, 269 So. 2d 657, 657-58 (Fla. 1972). On

this point, we find appellees’ reliance on DiPaolo v. Rollins Leasing Corp., 700 So.

2d 31, 32 (Fla. 5th DCA 1997), misplaced. There, our sister court observed:

       Once the summary judgment was entered disposing of the only action
      properly before the court as to Rollins, and the time for filing a
      petition for rehearing or a motion for new trial and the appeal period
      has run, there was no action remaining before the trial court on which
      to base an amendment even if the court had seen fit to permit one. A
      pending motion to amend does not extend the trial court’s jurisdiction
      after entry of final judgment, and the court's reserving consideration
      of that issue until a later time does not change that fact.



                                            8
No summary judgment or final disposition of the action pending below was

entered in this case. Nor does the instant case involve a motion to amend pending

before final disposition. DiPaolo is simply inapposite.

      So too are the cases relied on by the trial court in its dismissal order. In

Derma Lift Salon, Inc. v. Swanko, 419 So. 2d 1180, 1180 (Fla. 3d DCA 1982), this

court concluded a trial court’s order of dismissal for failure to comply with

discovery, albeit “without prejudice,” was a final order. However, the order at

issue there accorded no opportunity to amend. Similarly, in Golden Gate Homes,

L.C. v. L & G Engineering Services, Inc., 974 So. 2d 489, 490 (Fla. 3d DCA

2008), this court concluded that an order, not contingent on any further action by

the plaintiff, which granted a motion to dismiss as a sanction and without prejudice

was a final order. Finally, while our sister court in City of Sanibel v. Maxwell, 925

So. 2d 486, 488 (Fla. 2d DCA 2006), concluded that a trial court was without

jurisdiction to proceed, it did so on facts wholly distinguishable from those of the

case at hand:

         The trial court granted dismissal “without prejudice to the plaintiffs
      [the respondents herein] to seek relief in an original Petition for Writ
      of Certiorari.” The order of dismissal was filed August 19, 2003, and
      no appeal was taken from that order. The respondents then sought a
      writ of certiorari in a separate proceeding but subsequently . . . agreed
      to a denial of their request for the writ of certiorari. Thereafter, in May
      2005, they filed a motion for leave to file a second amended
      complaint in the original lawsuit, case no. 02-13281-CA-JC.

City of Sanibel, 925 So. 2d at 488.


                                          9
          Here unlike City of Sanibel, time was accorded to amend in the pending

action and timely compliance with that authorization occurred.

          In short, this and the other cases cited by the trial court are simply

inapposite. The order of dismissal with leave to amend was not a final order which

resulted in loss of jurisdiction in the court below and must be reversed. Moreover,

because no legal basis was demonstrated either below or in this court for

demanding that Branch dismiss her action in Barbados as a condition precedent to

maintaining her action here, and because the record demonstrates without

contradiction that she had done so in any event, on remand Branch shall be

allowed to file her amended complaint with this matter being expeditiously set for

trial.1

          Reversed and remanded.




1 In light of these rulings we need not address further the untimely and wholly
baseless forum non conveniens arguments made by defendants below.

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