SAMUEL HAMILTON, APPELLANT,
v.
MILLNUL ASSOCIATES, A PARTNERSHIP UNDER THE LAWS OF THE STATE OF NEW JERSEY, AND HENRY D. MAYER, INDIVIDUALLY, APPELLEES
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A voluntary dismissal followed by a dismissal for lack of prosecution is without prejudice to refiling the suit.
Appellant contends that a voluntary dismissal followed by a dismissal for failure to prosecute should result in dismissal with prejudice. The court co…
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LEHAN, Judge.
We affirm the lower court’s order of dismissal without prejudice and hold that a voluntary dismissal followed by a dismissal for lack of prosecution is without prejudice to refiling the suit.
Recently this court found there was no authority for a dismissal with prejudice when the dismissal is based solely on the failure to prosecute. McDaniel v. Onkey, 422 So. 2d 70 (Fla. 2d DCA 1982). The parties agree that a dismissal under Florida Rule of Civil Procedure 1.420(e) for failure to prosecute does not constitute an adjudication on the merits.
The parties also agree that when a party has voluntarily dismissed an action under Florida Rule of Civil Procedure 1.420(a)(1), a second dismissal under that subsection operates as an adjudication on the merits and bars the claim. But the two-dismissal provision in rule 1.420(a)(1) is in derogation of the common law and should be strictly construed. Crump v. Gold House Restaurant, 96 So. 2d 215, 219 (Fla.1957).
Appellant contends that when a plaintiff takes a voluntary dismissal under rule 1.420(a)(1) and then suffers a dismissal for failure to prosecute under rule 1.420(e), the consequence should be dismissal with prejudice. We disagree. Those two types of dismissals do not result in a dismissal with prejudice under rule 1.420(a)(1) construed by any method, much less strictly construed as required by Crump. There is no proper basis to combine the language of rules 1.420(a)(1) and 1.420(e) by construing a dismissal for failure to prosecute as a second, voluntary dismissal which, in the final analysis, appears to be appellant’s contention.
We should note that two voluntary dismissals do not necessarily entail dismissal with prejudice. One dismissal could be under rule 1.420(a)(1) and the second under rule 1.420(a)(2), which allows the court discretion to dismiss with or without prejudice.
AFFIRMED.
OTT, C.J., and HOBSON, J., concur.
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CPI Mfg. Co., Inc. v. Industrias ST. Jack's, 870 So. 2d 89 (Fla. 3d DCA 2003)…use as is contemplated by the rule) (citation omitted). We further point out that the trial court correctly entered the dismissal without prejudice. A dismissal without prejudice is not an adjudication on the merits. See Hamilton v. Millnul Assocs., 443 So. 2d 485, 486 (Fla. 2d DCA 1984). Thus, the plaintiff can refile the suit. Id.…
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Houswerth v. Neimiec, 603 So. 2d 88 (Fla. 5th DCA 1992)…1 (Fla. 2nd DCA 1966), cert. denied, 210 So. 2d 223 (Fla.1968). However, a dismissal for failure to prosecute is not a ruling on the merits and therefore cannot be the basis of a subsequent res judicata argument. See Hamilton v. Millnul Associates., 443 So. 2d 485 (Fla. 2d DCA 1984); Zukor v. Hill, 84 So. 2d 554 (Fla.1956). In the instant case res judicata was not appropriate. Hous-werth’s initial case was dismissed without prejudice for failure to prosecute. This court has previously held in a case in which…
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Se. Mortg. Co. v. Daniel E. Sinclair and_, 632 So. 2d 677 (Fla. 2d DCA 1994)…issal with prejudice and thus res judicata as to the subsequent complaint. We reverse. A dismissal for lack of prosecution does not result in a dismissal with prejudice and, hence, is not a bar to refiling the suit. Hamilton v. Millnul Associates, 443 So. 2d 485 (Fla. 2d DCA 1984). It is not an adjudication on the merits. Id. at 486. We therefore reverse the order of dismissal and remand with directions that the appellant’s complaint be reinstated. Reversed. SCHOONOVER and HALL, JJ., concur.…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Crump v. Gold House Rests., Inc., 96 So. 2d 215 (Fla. 1957)
- Woodson McDANIEL v. Onkey, 422 So. 2d 70 (Fla. 2d DCA 1982)