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McDaniel v. Onkey

District Court of Appeal of Florida, Second District
Nov 17, 1982
422 So. 2d 70 (Fla. Dist. Ct. App. 1982)

Opinion

No. 82-48.

November 17, 1982.

Appeal from the Circuit Court, Collier County, Ted Brousseau, J.

Hugh Sawyer, St. Petersburg, for appellant.

Jana V. Jay of Napier Donovan, Naples, for appellee.


We find no error in the order of the trial court dismissing this action for lack of prosecution under Florida Rule of Civil Procedure 1.420(e). Neither do we find any abuse of discretion in the order of the trial court denying the motion to vacate the order of dismissal or reinstate the action. However, the dismissal "with prejudice" was improper.

There is no authority for a dismissal with prejudice when such dismissal is based solely on the failure to prosecute. See Bair v. Palm Beach Newspapers, Inc., 387 So.2d 517 (Fla. 4th DCA 1980), and Tapper v. Taunton, 371 So.2d 595 (Fla. 1st DCA 1979). We therefore strike the words "with prejudice" from the order of dismissal. As so amended, we affirm the order of dismissal and the order refusing to vacate the dismissal or reinstate the action.

OTT, C.J., and CAMPBELL and SCHOONOVER, JJ., concur.


Summaries of

McDaniel v. Onkey

District Court of Appeal of Florida, Second District
Nov 17, 1982
422 So. 2d 70 (Fla. Dist. Ct. App. 1982)
Case details for

McDaniel v. Onkey

Case Details

Full title:WOODSON McDANIEL, APPELLANT, v. RICHARD ONKEY, APPELLEE

Court:District Court of Appeal of Florida, Second District

Date published: Nov 17, 1982

Citations

422 So. 2d 70 (Fla. Dist. Ct. App. 1982)

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