FANTASY & FAUX INCORPORATED, APPELLANT,
v.
KALI WEBB, C.E. BROOKS INVESTMENTS, INC., ET AL, APPELLEES
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Dismissals for failure to prosecute must be without prejudice, and a dismissal that is not a final adjudication is not appealable.
Fantasy & Faux, Inc. sued several defendants. The trial court dismissed the action for failure to prosecute. The dismissal against one defendant was n…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Final Adjudication cases and more on FLexlaw
COBB, W., Senior Judge.
The appellant, Fantasy & Faux, Inc. (Fantasy), asserts error by the trial court in dismissing with prejudice its action against the defendants below, Kali Webb, C.E. Brooks Investments, Inc., Cindy Brooks, and Jennifer Brooks, for failure to prosecute pursuant to Florida Rule of Civil Procedure 1.420(e). Such dismissals, argues Fantasy, do not constitute adjudications on the merits and must be entered without prejudice. See, e.g., Henson v. Whorf, 466 So. 2d 23 (Fla. 5th DCA 1985).
While we agree with the proposition of law advanced by Fantasy, it is premature in regard to the defendant Webb because the order entered below merely states that her motion for involuntary dismissal is granted; no final adjudication was entered. See Arcangeli v. Albertson’s Inc., 550 So. 2d 557 (Fla. 5th DCA 1989). Therefore, we dismiss the instant appeal in respect to Webb and remand her case to the trial court for further proceedings.
As to the various Brooks defendants, the trial judge did enter a final judgment of dismissal with prejudice, which was error pursuant to Henson. Moreover, these defendants had not moved for a judgment of dismissal with prejudice, nor did they notice a hearing with any reference to a dismissal with prejudice. Accordingly, we reverse the order entered under date of March 28, 2002, for the Brooks defendants, and remand for entry of a judgment of dismissal for failure to prosecute without prejudice.
DISMISSED in part, REVERSED in part, and REMANDED.
GRIFFIN and PLEUS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Bank OF Am., N.A. v. Cartus, 920 So. 2d 774 (Fla. 3d DCA 2006)…IAM. This appeal is dismissed for lack of jurisdiction as taken from a non-final, non-appealable order which merely grants a motion to dismiss. See Murphy v. WISU Props., Ltd., 895 So. 2d 1088, 1096 (Fla. 3d DCA 2004); Fantasy & Faux Inc. v. Webb, 834 So. 2d 338 (Fla. 5th DCA 2003). Appeal dismissed.…
-
State v. Sadler, 920 So. 2d 647 (Fla. 5th DCA 2005)…ases, it does not appear to mean “with prejudice.” The supreme court uses it in form 1.989 applicable to a judgment of dismissal for lack of prosecution, an event plainly “without prejudice” to refile under Florida law. Fantasy & Faux, Inc. v. Webb, 834 So. 2d 338 (Fla. 5th DCA 2003); Henson v. Whorf, 466 So. 2d 23 (Fla. 5th DCA 1985). “Go hence without day” appears both by its terms (i.e., nothing else to be scheduled) and in application to mean that the current proceedings are final, but not that refiling o…
Authorities Cited
- Kramer v. State, 550 So. 2d 557 (Fla. 5th DCA 1989)
- Arcangeli v. Albertson's, Inc., 550 So. 2d 557 (Fla. 5th DCA 1989)
- R.H. Hammond, Sr. v. Jones, 466 So. 2d 23 (Fla. 3d DCA 1985)