Southeast Mortg. Co. v. Sinclair, 632 So. 2d 677

THREADGILL, Judge.

Southeast Mortgage Company appeals an order dismissing with prejudice its complaint to foreclose a mortgage on property owned by Daniel E. Sinclair and Donna Sinclair. The order was based ‍​​‌‌​​​‌​​‌​‌‌​​‌‌​‌​‌‌​​‌‌‌​‌​‌‌​‌​‌‌‌‌‌​​​​​‌‌‌​‌​​‌‌‌​‌​​‌‌​​‌‌‌​​‌​‌‌‌‌​​​​‌‌‌​‌‌​‌‌‌​‌‌‌​‌‌‍on an order dismissing the same action for lack of prosecution in an earlier case. The trial court interpreted the earlier order as a dismissal with prejudice and thus res judicata as to the subsequent complaint. We reverse.

A dismissal for lack of prosecution does not result in a dismissal with prejudice and, hence, is not a bar to refiling the suit. Hamilton v. Millnul Associates, 443 So.2d 485 ‍​​‌‌​​​‌​​‌​‌‌​​‌‌​‌​‌‌​​‌‌‌​‌​‌‌​‌​‌‌‌‌‌​​​​​‌‌‌​‌​​‌‌‌​‌​​‌‌​​‌‌‌​​‌​‌‌‌‌​​​​‌‌‌​‌‌​‌‌‌​‌‌‌​‌‌‍(Fla. 2d DCA 1984). It is not an adjudication on the merits. Id. at 486.

We therefore reverse the order of dismissal and remand with directions that the appellant‘s complaint be reinstated.

Reversed.

SCHOONOVER and HALL, JJ., concur.

Case Details

Case Name: Southeast Mortg. Co. v. Sinclair

Court Name: District Court of Appeal of Florida

Date Published: Feb 23, 1994

Citations: 632 So. 2d 677; 1994 WL 58269; 93-01986

Docket Number: 93-01986

Court Abbreviation: Fla. Dist. Ct. App.