Opinion
No. 79-2072.
August 19, 1980.
Appeal from Circuit Court, Dade County; Thomas A. Testa, Judge.
Mershon, Sawyer, Johnston, Dunwody Cole and Michael C. Cesarano, Miami, for appellant.
J. James Donnellan, III, Miami, for appellee.
Before BARKDULL and SCHWARTZ, JJ., and VANN, HAROLD R. (Ret.), Associate Judge.
After filing an action in Colombia, S.A., on a note executed in and payable in Colombia, the appellant filed a subsequent action on the same note in the Circuit Court in and for the Eleventh Judicial Circuit. Upon the trial judge concluding that the prior action was still pending in Colombia, he dismissed the second action with prejudice. This appeal ensued.
We sustain the trial judge's discretion in dismissing the second cause. Hagen v. Viney, 124 Fla. 747, 169 So. 391 (1936); McWane Cast Iron Pipe Corporation v. McDowell-Wellman Engineering Company, 263 A.2d 281 (Del. 1970); Fitch v. Whaples, 220 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.