NATIONAL CARLOADING CORP., A NEW JERSEY CORPORATION, D/B/A ABC AIR FREIGHT CO., APPELLANT,
v.
GEMINI TRANSPORTATION, INC., ET AL., APPELLEES
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The court affirmed the dismissal for lack of prosecution but reversed the dismissal 'with prejudice'.
Plaintiff appealed an order dismissing his cause for lack of prosecution. The trial court dismissed the case with prejudice.…
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PER CURIAM.
The appellant, who was the plaintiff in the trial court, appeals an order dismissing his cause for lack of prosecution. See Florida Rule of Civil Procedure 1.420(e). We affirm upon a holding that the record clearly reflects plaintiff’s failure to proceed with this case for the periods of time specified. See Leithauser v. Harrison, 206 So. 2d 222, 224 (Fla. 4th DCA 1968).1
A further point by the plaintiff urges that the dismissal was improperly made “with prejudice.” We agree, and strike from the order of dismissal the words “with prejudice” from the first line of the “ordered and adjudged” portion of the court’s order of November 18, 1977, which is here appealed. Where the dismissal of an action is not upon the merits, the dismissal should be without prejudice. See Spolter Electrical Supplies, Inc. v. Kalb, 275 So. 2d 594 (Fla. 4th DCA 1973).
Affirmed in part; reversed in part.
. “On a motion to dismiss for lack of prosecution, the issue is simply and exclusively whether there has been a failure to prosecute. If no action towards prosecution has been taken within a year, the trial judge may not exercise his discretion and must dismiss the cause.”
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Gries Inv. Co. v. Chelton, 388 So. 2d 1281 (Fla. 3d DCA 1980)…the complaint was dismissed with prejudice. A dismissal need not be with prejudice to be a final order for appeal purposes. See, e. g., Tapper v. Taunton, 371 So. 2d 595 (Fla. 1st DCA 1979); National Carloading Corp. v. Gemini Transportation, Inc., 364 So. 2d 504 (Fla. 3d DCA 1978). While the dismissal here was, in fact, an adjudication on the merits, see Florida Rule of Civil Procedure 1.420(b),5 that fact, although critical on the issue of res judicata, is not critical on the issue of appealability. Thus,…
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Millsaps v. Orlando Wrecker, Inc., 634 So. 2d 680 (Fla. 5th DCA 1994)…on the merits and the statute of limitations has not yet run at the time of dismissal, the dismissal should not be with prejudice. Wemett v. Duval County, 485 So. 2d 892 (Fla. 1st DCA 1986); National Carloading Corp. v. Gemini Transportation, Inc., 364 So. 2d 504 (Fla. 3d DCA 1978). An order dismissing a cause for lack of an indispensable party is not an adjudication on the merits. In re C.T.D., 623 So. 2d 834, 834 n 1, (Fla. 4th DCA 1993); Fulmer v. Northern Central Bank, 386 So. 2d 856 (Fla. 2d DCA 1980),…
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Banco del Comercio v. Barco, 386 So. 2d 1298 (Fla. 3d DCA 1980)…20 A. 2d 170 (Me.1966); Anno. 19 A.L.R.2d 301, 317, § 5. However, we modify it by this opinion to make the dismissal without prejudice. Rashard v. Cappiali, 171 So. 2d 581 (Fla. 3d DCA 1965); National Carloading Corp. v. Gemini Transportation, Inc., 364 So. 2d 504 (Fla. 3d DCA 1978). Affirmed as modified.…
Authorities Cited
- Leithauser v. Harrison, 206 So. 2d 222 (Fla. 4th DCA 1968)
- Spolter Elec. Supplies, Inc. v. Kalb, 275 So. 2d 594 (Fla. 4th DCA 1973)