JAMES H. GIBBS, APPELLANT,
v.
HENRY P. TRUDEAU, APPELLEE
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In this mortgage foreclosure case, the trial court erroneously dismissed the action as res judicata based on a prior dismissal for want of prosecution. The appellate court reversed, holding that a dismissal for want of prosecution without adjudication on the merits does not bar a subsequent suit on the same subject matter.
A dismissal for want of prosecution that does not involve an adjudication on the merits does not constitute res judicata and cannot be pleaded in bar of a subsequent suit on the same subject matter. Only involuntary dismissals under Rule 1.420(b) for failure to comply with a mandatory court order constitute an adjudication on the merits and bar subsequent suits.
[1] A dismissal of a cause of action for want of prosecution, which does not involve an adjudication on the merits, is not res judicata and cannot be pleaded in bar of a subs…
[2] An involuntary dismissal of a cause of action for failure to comply with a mandatory court order operates as an adjudication on the merits and bars a subsequent suit.
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Join FLexlaw to unlock all legal intelligence“if the dismissal is for want of prosecution and does not involve an adjudication of the merits, the dismissal is not res judicata of the controversy and cannot be pleaded in bar of a subsequent suit on the same subject matter.”
Establishes the core legal principle that dismissals for want of prosecution without adjudication on merits do not bar subsequent suits
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Join FLexlaw to unlock all legal intelligenceGibbs brought a foreclosure action against Trudeau on a real estate mortgage in Volusia County. The complaint, with attached promissory note and mortg…
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WIGGINTON, Judge.
Plaintiff in the trial court has appealed a final judgment which denied his motion for summary judgment and dismissed the cause.
Appellant contends that the trial court committed reversible error in reaching the conclusions expressed in the judgment appealed.
This action is brought for the purpose of foreclosing a real estate mortgage on certain described lands in Volusia County.
The complaint to which is attached a copy of the promissory note and mortgage sought to be foreclosed is regular and valid on its face.
Upon defendant’s failure to file his defenses as required by law and rules of the court, a default judgment was duly and regularly entered against him.
Thereafter appellant filed in the cause his proofs establishing the amount of money due on the note and mortgage sued upon, accompained by a motion for summary judgment and a proposed final judgment of foreclosure to be rendered by the court.
Following the hearing on appellant’s motion, the trial court rendered its final judgment of dismissal.
This judgment recites that the court being informed that this case involves the same subject matter and issues as a prior cause of action filed in the same court which had theretofore been dismissed for want of prosecution without an adjudication on the merits, which dismissal was jurisdictional, the plaintiff’s motion for summary judgment is denied and on the court’s own motion the cause is dismissed without prejudice and without an adjudication on the merits.
From the findings and conclusions expressed in the judgment appealed, it clearly appears that the trial court was of the opinion and so held that the dismissal of the prior action between the parties involving the identical subject matter of the case sub judice was res judicata of the action now sued upon and, therefore, this action is barred.
In reaching this conclusion, the trial court erred. In an unbroken line of decisions rendered by the appellate courts of this state commencing with Case v. Smith1 and terminating with Shew v. Kirby,2 it has been consistently held that a dismissal of a cause of action is a final disposition which will support an appeal; yet if the dismissal is for want of prosecution and does not involve an adjudication of the merits, the dismissal is not res judicata of the controversy and cannot be pleaded in bar of a subsequent suit on the same subject matter.3 An involuntary dismissal of a cause of action by order of court under Rule 1.-420(b), 30 F.S.A., Rules of Civil Procedure, for failure of a plaintiff to comply with a mandatory order of the court operates as an adjudication on the merits of the action and is a bar to any subsequent suit brought on the same cause of action.4 It has been repeatedly held, however, that this principle of law is not applicable in instances where a cause of action is dismissed pursuant to Rule 1.420(e), Rules of Civil Procedure for failure to prosecute the action within the time required.5 For the reasons and upon the authorities above cited, the judgment appealed 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 (Fla.1957), 93 So. 2d 351. .
Shew v. Kirby, supra note 2; Zukor v. Hill (Fla.1956), 84 So. 2d 554.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (11 total)
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Murphy White Dairy, Inc. v. Simmons, 405 So. 2d 298 (Fla. 4th DCA 1981)…on, ...” . A dismissal for lack of prosecution is a final order for purposes of appeal, but not final— that is, without prejudice — so as to be res judicata. Bair v. Palm Beach Newspapers, Inc., 387 So. 2d 517 (Fla. 4th DCA 1980); Gibbs v. Trudeau, 283 So. 2d 889 (Fla. 1st DCA 1973). Moreover, the order appealed from, although titled “Order Granting Motion to Dismiss, etc.,” actually dismisses the cause so as to give the order requisite finality for appeal purposes. Compare, e. g., Shupack v. Allstate Insura…
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The Boeing Co. v. Jessee David Merchant and Flora Merchant, 397 So. 2d 399 (Fla. 5th DCA 1981)…t day.” A dismissal of a cause of action is a final disposition which will support an appeal, although a dismissal for want of prosecution which does not involve an adjudication of the merits is not res judicata of the controversy. Gibbs v. Trudeau, 283 So. 2d 889, 890 (Fla. 1st DCA 1973). It is an abuse of discretion for a trial court to deny a motion to dismiss for lack of prosecution under Florida Rule of Civil Procedure 1.420(e), where there has been no affirmative activity in the case for [*402] a perio…
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Fla. Patient's Comp. Fund v. ST. Paul Fire & Marine Ins. Co., 535 So. 2d 335 (Fla. 4th DCA 1988)…against her by the landowners to quiet the title against her claim. On the other hand, dismissal of a suit for failure to prosecute under Florida Rule of Civil Procedure 1.420(e) did not preclude the re-filing of an identical suit. Gibbs v. Trudeau, 283 So. 2d 889 (Fla. 1st DCA 1973). In the prior action here, the trial court dismissed the complaint because the Patient’s Compensation Fund failed to comply with the statutory requirement of payment within one year. Although it has been argued that this was but…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Warren D. Hinchee et ux. v. Charles E. Fisher et ux., 93 So. 2d 351 (Fla. 1957)
- 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)
- Case v. Smith, 146 Fla. 340 (Fla. 1941)
- Yinger v. Kasow, 123 So. 2d 758 (Fla. 3d DCA 1960)
- Shew v. Kirby, 135 So. 2d 770 (Fla. 2d DCA 1961)