H. G. SHEW AND ETHEL H. SHEW, INDIVIDUALLY AND AS TRUSTEES FOR THE LEESBURG GOSPEL TABERNACLE, APPELLANTS,
v.
PAUL W. KIRBY, APPELLEE
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The appellate court reversed a summary decree that barred defendants from asserting a counterclaim for deed reformation based on res judicata and laches. The court held that a prior dismissal for failure to prosecute does not constitute an adjudication on the merits and therefore does not bar a subsequent suit on the same subject matter.
A dismissal for failure to prosecute under § 45.19 does not constitute an adjudication on the merits and therefore does not bar a subsequent suit on the same subject matter. Additionally, laches cannot serve as an alternative ground for summary judgment when it has not been pleaded or raised by the moving party, and laches does not equate with the doctrine of res judicata.
“a dismissal for failure to prosecute under § 45.19, F.S.A., does not constitute an adjudication on the merits so as to bar a subsequent suit on the same subject matter”
Establishes the primary holding that prior dismissal for failure to prosecute does not create res judicata
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Join FLexlaw to unlock all legal intelligenceAppellants H. G. Shew and Ethel H. Shew were defendants in a suit for injunctive relief brought by Paul W. Kirby. The Shews sought to assert an answer…
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This appeal is brought from- a summary final decree wherein the lower court held that appellants, defendants below, were barred from asserting their answer and counterclaim against plaintiff-appellee in this suit for injunctive relief since the subject matter contained in said answer and counterclaim was barred by the doctrines of res judicata and laches. The reformation of a deed, the necessity for which was raised in the answer and which was sought by the counterclaim, had previously been before the court between the same parties. Defendant-counterclaimant in the instant case was the plaintiff in the prior suit which was dismissed for failure to prosecute under § 45.19, F.S.A.
We hold that it was error for the lower court to rule that a previous dismissal for failure to prosecute rendered the subject matter of the instant answer and counterclaim res judicata. It is well settled that a dismissal for failure to prosecute under § 45.19, F.S.A., does not constitute an adjudication on the merits so as to bar a subsequent suit on the same subject matter. Hassenteufel v. Howard Johnson, Inc. of Florida, Fla.1951, 52 So.2d 810; Yinger v. Kasow, Fla.App.1960, 123 So.2d 758; Alson Mfg. Co. v. Silvers, Fla.1957, 95 So.2d 16; May v. State ex rel. Ervin, Fla.1957, 96 So.2d 126. In Zukor v. Hill, Fla.1956, 84 So.2d 554, the Supreme Court, in construing § 45.19 in conjunction with Common Law Rule 35(b) on involuntary dismissal which is identical to the present rule on the same subject, F.R.C.P. 1.35(b), 30 F.S.A., held that said involuntary dismissal rule, which covers dismissal with prejudice for failure of a plaintiff to comply with any order of the court, does not apply in instances where an action is dismissed under § 45.19 for failure to prosecute and therefore does not bar a subsequent action on the same subject matter.
In its summary final decree the lower court also commented on the similarity between the doctrines of res judicata and laches and seemed to make the latter an alternative basis for its holding. Neither laches nor any facts pointing to it were *771pleaded or raised by plaintiff-appellee m his motion for summary decree and affidavit in support thereof. Furthermore, laches is, in equity, the correlative of limitations of actions at law and does not equate with the doctrine of res judicata as indicated by the lower court’s decree. In the absence of any plea of laches, it was error to treat that doctrine as an alternative ground for an order granting plaintiff’s motion for summary final decree.
The decree appealed from is therefore reversed and remanded for further proceedings not inconsistent with this opinion.
Reversed.
SHANNON, C. J., and WHITE, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Gibbs v. Trudeau, 283 So. 2d 889 (Fla. 1st DCA 1973)…ed herein is reversed and the cause remanded for further proceedings consistent with the views expressed herein. RAWLS, C. J., and DREW, Associate Judge, concur. . Case v. Smith (1941), 146 Fla. 340, 200 So. 917. . Shew v. Kirby (Fla.App.1961), 135 So. 2d 770. . Hassenteufel v. Howard Johnson, Inc. (Fla.1951), 52 So. 2d 810; Alson Mfg. Co. v. Silvers (Fla.1957), 95 So. 2d 16; May v. State ex rel. Ervin (Fla.1957), 96 So. 2d 126; Yinger v. Kasow (Fla.App.1960), 123 So. 2d 758. . Hinchee v. Fisher…
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Corona Props. OF Fla., Inc. v. Monroe Cnty., 485 So. 2d 1314 (Fla. 3d DCA 1986)…tz, 262 So. 2d at 279-80. The doctrine of laches is to actions in equity what statutes of limitations are to actions in law. Steketee v. Ballance Homes, Inc., 376 So. 2d 873 (Fla. 2d DCA 1979), cert. denied, 385 So. 2d 754 (Fla.1980); Shew v. Kirby, 135 So. 2d 770 (Fla. 2d DCA 1961); see Wall v. Johnson, 78 So. 2d 371 (Fla.1955); Jefferies v. Corwin, 363 So. 2d 600 (Fla. 4th DCA 1978); Tower v. Moskowitz, 262 So. 2d at 279. Laches acts as a shield to an action, therefore, it has no application to the case at…
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Steketee v. Ballance Homes, Inc., 376 So. 2d 873 (Fla. 2d DCA 1979)…ss that contention, however, since it was merely an ancillary comment in the nature of dicta. It is our understanding, however, that the doctrine of laches is to actions in equity what the statutes of limitation are to actions in law. Shew v. Kirby, 135 So. 2d 770 (Fla. 2d DCA 1961). It thus operates to bar rights which are not asserted seasonably. Cone v. Benjamin, 157 Fla. 800, 27 So. 2d 90 (1946). Here the complaint filed in 1975 had properly asserted the right to a deficiency judgment, and the defendants…
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
- MAY v. State of Fla. ex rel. Richard W. Ervin, 96 So. 2d 126 (Fla. 1957)
- Hassenteufel v. Johnson, 52 So.2d 810 (Fla. 1951)
- Zukor v. Hill, 84 So. 2d 554 (Fla. 1956)
- Alson MFG. Co. v. Silvers, 95 So. 2d 16 (Fla. 1957)
- Yinger v. Kasow, 123 So. 2d 758 (Fla. 3d DCA 1960)