Southeast Mortg. Co. v. Sinclair

Full title: SOUTHEAST MORTGAGE COMPANY, APPELLANT, v. DANIEL E. SINCLAIR AND ____, HIS…

Court: District Court of Appeal of Florida, Second District

Date published: Feb 23, 1994

632 So. 2d 677 (Fla. Dist. Ct. App. 1994)

Opinion

No. 93-01986.

February 23, 1994.

Appeal from the Circuit Court for Lee County, Isaac Anderson, Jr., J.

James E. Tribble, Blackwell Walker, P.A., Miami, for appellant.

Daniel E. Sinclair, North Fort Myers, for appellee Sinclair.

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.