LUIS F. RODRIGUEZ KOHLY, APPELLANT,
v.
MARK WALLACH AND MARK WALLACH, LTD., A NEW YORK CORPORATION, JOINTLY AND SEVERALLY, APPELLEES
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A dismissal for lack of record activity under Rule 1.420(e) cannot be with prejudice as it is not an adjudication on the merits.
Plaintiff's case was dismissed due to a year of inactivity. The trial court found the plaintiff's affidavit of good cause insufficient to keep the cas…
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LEVY, Judge.
The appellant, who was the plaintiff below, filed his action in the trial court in 1987. Subsequently, a period of one year elapsed without occurrence of any record activity. As a result thereof, and pursuant to the filing of a motion by the appellee, who was the defendant below, the trial court dismissed the cause pursuant to the provisions of Rule 1.420(e). In doing so, the trial court made a finding that the appellant’s “Affidavit of Good Cause”, which was filed in opposition to the appel-lee’s Motion to Dismiss, did not set forth a sufficient basis to allow the cause to remain pending.
For the purposes of this appeal, the appellant does not quarrel with the foregoing actions of the trial court. The appellant does argue, however, that the trial court was in error in dismissing the case with prejudice. We agree with appellant’s position.
Dismissal of a cause of action under the provisions of Rule 1.420(e) is not an adjudication on the merits thereof. Such a dismissal, based solely upon the absence of record activity, cannot be entered with prejudice. See Hassenteufel v. Howard Johnson, Inc. of Fla., 52 So. 2d 810 (Fla.1951); Pettijohn v. Dade County, 446 So. 2d 1143 (Fla. 3d DCA 1984); Murphy White Dairy, Inc. v. Simmons, 405 So. 2d 298 (Fla. 4th DCA 1981).
Accordingly, this cause must be remanded with directions to the trial court to modify its order of dismissal so as to delete the portion thereof that makes the dismissal one “with prejudice”.
The order of dismissal must also be modified so as to delete the portion thereof that purports to retain jurisdiction to award attorneys’ fees, since, in view of the foregoing, that portion of the order was also improvidently entered.
Reversed and remanded with directions.
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Smith v. ST. VIL, 714 So. 2d 603 (Fla. 4th DCA 1998)…for lack of jurisdiction, improper venue, and lack of indispensable party, are not on the merits. We must look to the ease law, however, to confirm that dismissals for failure to prosecute under rule 1.420(e) are not on the merits. Kohly v. Wallach, 580 So. 2d 880 (Fla. 3d DCA 1991). Nor are dismissals for failure to serve a defendant within 120 days under rule 1.070(j) on the merits. Bankers Ins. Co. v. Thomas, 684 So. 2d 246 (Fla. 2d DCA 1996).1 [*605] Although the above described dismissals are not on the…
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Wright v. Allen, 611 So. 2d 23 (Fla. 1st DCA 1992)…at dismissal-is appropriate pursuant to Florida Rule of Civil Procedure 1.420(e), as a sanction for the appellant’s failure to prosecute the action. However, such a dismissal under rule 1.420(e) must be without prejudice. See e.g., Kohly v. Wallach, 580 So. 2d 880 (Fla. 3d DCA 1991); Henson v. Whorf, 466 So. 2d 23 (Fla. 5th DCA 1985); see also, Bair v. Palm Beach Newspapers, Inc., 387 So. 2d 517 (Fla. 4th DCA 1980). Furthermore, the court’s earlier order which granted the appellant’s motion to set aside the n…
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Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Murphy White Dairy, Inc. v. Simmons, 405 So. 2d 298 (Fla. 4th DCA 1981)
- Hassenteufel v. Johnson, 52 So.2d 810 (Fla. 1951)
- United AIR Leasing Corp. v. F.A. Conner, 446 So. 2d 1143 (Fla. 3d DCA 1984)