In the same judgment, the trial judge denied appellees' motion for summary judgment because, as he concluded, there was a genuine issue of material fact. The appellant contends that the main question here is controlled by the case of Zukor v. Hill, Fla. 1956, 84 So.2d 554. In the Zukor case, a prior action between the parties had been dismissed under § 45.19, supra, for failure to prosecute.
The trial court's decision to proceed to a disposition of the cause on its merits should not, in the situation at bar be disturbed. See Zukor v. Hill, Fla. 1956, 84 So.2d 554, 556; Searlett v. Frederick, 147 Fla. 407, 3 So.2d 165; May v. State ex rel. Ervin, Fla. 1957, 96 So.2d 126; Elmer A. Yelvington Son, Inc. v. Sheridan, Fla. 1953, 65 So.2d 44. Upon reconsideration we adhere to the prior determination of the cause.
The record before us fails to show any basis for the court's order denying the motion to dismiss. Should the respondents establish good cause for reinstatement of the action the controversy may be then heard on the merits and even if the movants do not prevail the merits of the dispute may be determined in a subsequent suit for such a dismissal does not amount to an adjudication of the merits, Hassenteufel v. Howard Johnson, Inc., of Florida, Fla., 52 So.2d 810; Zukor v. Hill, Fla., 84 So.2d 554; Alson Mfg. Co. v. Silvers, Fla., 95 So.2d 16, notwithstanding any expression in Hinchee v. Fisher, Fla., 93 So.2d 351, with reference to Rule 41 (b), Federal Rules of Civil Procedure, 28 U.S.C.A., apparently to the contrary. The order under review is hereby quashed with directions that an order be entered dismissing the cause for failure to prosecute under the statute but with leave to the plaintiff to file and have considered within the time fixed by the statute his petition to reinstate the cause.
The lone question here is whether or not the order of dismissal and the order denying a motion to vacate the order of dismissal amounted to such a determination of the controversy that by the doctrine of res judicata the present action must be defeated. We think we should answer the question in the negative in view of our pronouncements in Hassenteufel v. Howard Johnson, Inc., of Florida, Fla., 52 So.2d 810, and Zukor v. Hill, Fla., 84 So.2d 554. When the court dismissed the first case, jurisdiction of that case came to an end especially when reinstatement was denied, but the institution of a new action was not precluded and this, of course, is the new action.
A dismissal for failure to prosecute is not an adjudication on the merits. Zukor v. Hill, 84 So.2d 554, 556 (Fla. 1956). We conclude that a preliminary determination regarding the "probable validity" of the plaintiff's claim to the subject property is also not an adjudication on the merits.
However, a dismissal for failure to prosecute is not a ruling on the merits and therefore cannot be the basis of a subsequent res judicata argument. See Hamilton v. Millnul Associates., 443 So.2d 485 (Fla. 2d DCA 1984); Zukor v. Hill, 84 So.2d 554 (Fla. 1956). In the instant case res judicata was not appropriate. Houswerth's initial case was dismissed without prejudice for failure to prosecute.
Later, based on the plain language of Section 45.19, the Florida Supreme Court held that notwithstanding the language of Florida Rule of Civil Procedure 1.35(b) that "any dismissal not provided for in this rule . . . shall operate as an adjudication on the merits," and the fact that a dismissal for failure to prosecute was provided for in Section 45.19, Florida Statutes, not in Rule 1.35, a dismissal for failure to prosecute could not operate as an adjudication on the merits. Zukor v. Hill, 84 So.2d 554 (Fla. 1956). In none of these cases is there the slightest suggestion of some public policy, much less some strong public policy, against a dismissal for failure to prosecute constituting an adjudication on the merits.
Even had the appellees presented grounds for such a dismissal, a dismissal on such a basis would not have constituted an adjudication of the merits or a bar to a subsequent suit. See Zukor v. Hill, 84 So.2d 554 (Fla. 1956). The order granting summary judgment in favor of the appellees is reversed, and the cause is remanded to the lower court for further proceedings consistent with this opinion, including a motion to permit appellants to amend their complaint by alleging special damages, if they can, in support of the relief sought under Count II of their amended complaint.
Hinchee v. Fisher (Fla. 1957), 93 So.2d 351. Shew v. Kirby, supra note 2; Zukor v. Hill (Fla. 1956), 84 So.2d 554. For the reasons and upon the authorities above cited, the judgment appealed herein is reversed and the cause remanded for further proceedings consistent with the views expressed herein.
A dismissal of an action for failure to prosecute pursuant to the provisions of Rule 1.420(e), RCP does not amount to an adjudication on the merits so as to effectively bar a subsequent suit between the same parties on the same cause of action. May v. State ex rel. Ervin, Fla. 1957, 96 So.2d 126; Zukor v. Hill, Fla. 1956, 84 So.2d 554; Hassenteufel v. Howard Johnson, Inc. of Florida, Fla. 1951, 52 So.2d 810; Sacks v. Rickles, Fla.App. 1963, 155 So.2d 400; Shew v. Kirby, Fla. App. 1961, 135 So.2d 770; Yinger v. Kasow, Fla.App. 1960, 123 So.2d 758. The judgment or order of dismissal is reversed and this cause remanded for further proceedings consistent herewith. Reversed and remanded.