RICHARD R. HOUSWERTH, APPELLANT,
v.
VICKI YATES NEIMIEC, APPELLEE
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Houswerth appeals the dismissal of his replevin action for property covered by a divorce settlement agreement. The trial court dismissed with prejudice based on res judicata from a prior dismissal for lack of prosecution, but the appellate court affirmed on the alternate ground that the statute of limitations had run, applying the Tipsy Coachman Rule.
The trial court erred in applying res judicata to dismiss the case, as a dismissal for lack of prosecution is not a ruling on the merits and cannot support a res judicata defense. However, the dismissal is affirmed because the statute of limitations has run on the underlying claim and the time the first action was pending did not toll the statute of limitations.
[1] A dismissal for failure to prosecute is not an adjudication on the merits and therefore cannot serve as the basis for a res judicata defense in a subsequent action.
[2] A dismissal for lack of prosecution does not toll the statute of limitations.
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Join FLexlaw to unlock all legal intelligence“Res judicata operates as an adjudication on the merits, barring a subsequent action on the same claim.”
Establishes the fundamental principle that res judicata requires a decision on the merits
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Join FLexlaw to unlock all legal intelligenceHouswerth and Neimiec were divorced, with a property settlement agreement incorporated into the final dissolution order. In 1988, while imprisoned, Ho…
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HARRIS, Judge.
Appellant’s Motion for Clarification is hereby granted. We withdraw our opinion of June 12, 1992 and substitute the following:
Richard R. Houswerth timely appeals from a final order of dismissal in a replevin action.
Houswerth was previously married to Vicki Yates Neimiec. The parties were divorced by final order of dissolution which incorporated a property settlement agreement. In 1988, Houswerth, while he was in prison, filed a replevin action for his property covered by the settlement agreement. The trial court dismissed the complaint for failure to prosecute. This court affirmed the dismissal.1
In 1991, while still in prison, Houswerth filed a new replevin action. Neimiec filed a motion to dismiss alleging that the complaint failed to state a cause of action, failed to allege when the cause of action accrued, and was res judicata. In his reply, Houswerth admitted that the cause of action arose in October 1984. Appellee then filed a motion for judgment on the pleadings stating that the statute of limitations had run in the case. The trial court, sua sponte, entered a final order of dismissal with prejudice holding that Hous-werth’s claim was barred by the doctrine of res judicata because of the prior dismissal.
Houswerth asserts that the trial court erred in dismissing with prejudice his re-plevin action on the basis of res judicata when the prior action was dismissed without prejudice for lack of prosecution. We agree.
Res judicata operates as an adjudication on the merits, barring a subsequent action on the same claim. McKibbin v. Fujarek, 385 So. 2d 724 (Fla. 4th DCA 1980); Drady v. Hillsborough County Aviation Authority, 193 So. 2d 201 (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 appellant was a party, that a dismissal for want of prosecution does not prevent appellant from filing suit again if all other legal requirements are met. See Houswerth v. Sheriff's Department, 567 So. 2d 476 (Fla. 5th DCA 1990). But this does not end our inquiry.
Neimiec urges that even if the trial court erred in dismissing the case on res judicata grounds, the statute of limitations has run and appellant has no valid cause of action. Here the record reflects that the statute of limitations was not tolled by the first action and it has now run. Hamilton v. Largo Paint & Decorating, Inc., 335 So. 2d 623 (Fla. 2nd DCA 1976) (where an action is dismissed for lack of prosecution, the time during which it was pending does not toll the statute of limitations and cannot be deducted from the total elapsed time in computing such statute); Barrentine v. Vulcan Materials Co., 216 So. 2d 59 (Fla. 1st DCA 1968).
Although the trial court’s stated reason is in error, his dismissal, based upon this record, is correct and we affirm under the Tipsy Coachman Rule. See Taylor v. Orlando Clinic, 555 So. 2d 876 (Fla. 5th DCA 1989), rev. denied, 567 So. 2d 435 (Fla.1990).
AFFIRMED.
GOSHORN, C.J., and COBB, J., concur. . Houswerth v. Neimiec, 571 So. 2d 483 (Fla. 5th DCA 1990).
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Prestige Rent-A-Car, Inc. v. Advantage CAR Rental & Sales, 656 So. 2d 541 (Fla. 5th DCA 1995)…innon Securities, Inc. v. Slater, 615 So. 2d 781 (Fla. 1st DCA 1993). The dismissal in New York was based on a lack of jurisdiction and was not a determination on the merits. Therefore, it is not a bar to these proceedings. See Houswerth v. Neimiec, 603 So. 2d 88 (Fla. 5th DCA 1992) (dismissal of replevin action for failure to prosecute was not a ruling on the merits and could not be the basis for applying res judicata to a subsequent action). Prestige also argues that paragraphs 20 and 23 render the contra…
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McBRIDE v. Pratt & Whitney & Ace USA, 909 So. 2d 386 (Fla. 1st DCA 2005)…n was pending; rather, the statute will run as if the dismissed action had never been filed. See, e.g., Fernon v. Itkin, 476 F.Supp. 1, 3-4 (M.D.Fla.1977) (interpreting Florida law), aff'd, 604 F. 2d 669 (5th Cir.1979) (table); Houswerth v. Neimiec, 603 So. 2d 88, 89 (Fla. 5th DCA 1992); Guerrero v. Fonte, 507 So. 2d 620, 621 n. 2 (Fla. 3d DCA 1987); Attache Resort Motel, Ltd. v. Kaplan, 498 So. 2d 501, 503 (Fla. 3d DCA 1986); Life Sciences, Inc. v. Emery Air Freight Corp., 341 So. 2d 272, 272 (Fla. 2d DCA 1…
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Wright v. Life Ins. Co. OF Ga., 762 So. 2d 992 (Fla. 4th DCA 2000)…. 2d 810, 812 (Fla.1951). Here, the trial court’s decision did not reach the merits of this action. Thus, we hold that Wright may re-file her suit sixty days after providing Life with written proof of the decedent’s death. See Houstwerth v. Neimiec, 603 So. 2d 88, 89 (Fla. 5th DCA 1992)(holding the dismissal of a replevin action for failure to prosecute was not a ruling on the merits and did not bar an action on the same claim). In reaching this determination, we note that the outcome here may have been dif…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Drady v. Hillsborough Cnty. Aviation Auth., 193 So. 2d 201 (Fla. 2d DCA 1966)
- Taylor v. Orlando Clinic, 555 So. 2d 876 (Fla. 5th DCA 1989)
- McKIBBIN v. Fujarek, 385 So. 2d 724 (Fla. 4th DCA 1980)
- Zukor v. Hill, 84 So. 2d 554 (Fla. 1956)
- Barrentine v. Vulcan Materials Co., 216 So. 2d 59 (Fla. 1st DCA 1968)
- John S. Hamilton et ux. v. Largo Paint & Decorating Inc., 335 So. 2d 623 (Fla. 2d DCA 1976)
- Hamilton v. Millnul Assocs., 443 So. 2d 485 (Fla. 2d DCA 1984)
- Jackson v. State, 210 So. 2d 223 (Fla. 1968)
- Henry v. State, 210 So. 2d 223 (Fla. 1968)
- Houswerth v. Sheriff's Dep't, 567 So. 2d 476 (Fla. 5th DCA 1990)