Southeast Mortg. Co. v. Sinclair

632 So. 2d 677 (1994)

SOUTHEAST MORTGAGE COMPANY, Appellant,
v.
Daniel E. SINCLAIR and ____, his Wife, if he be Married; Donna K. Sinclair and ____, Her Husband, if she be Married; Harmony Homes of Lee County, Inc., a Dissolved Florida Corporation; Alex J. Santucci; Classic Homes, Inc. of Lee County, a Dissolved Florida Corporation; Sunwest Realty Development, Inc., a Dissolved Florida Corporation, a/K/a Sunwest Development, Inc.; R.J. Carlson and Associates, Inc., a Florida Corporation; Ronald J. Carlson; Frances W. Carlson; Harmony Homes, Inc., a Florida Corporation; Carpet Specialties & Interiors; Thomas F. Flynn; Jeffrey S. Moore and Stephanie J. Nason-Moore; C & S National Bank of Florida F/K/a First National Bank in Fort Myers, a National Banking Corporation; West Publishing Company; United States of America, a Sovereign Government; John Doe and Jane Doe, His Wife or Her Husband, If He or She Be Married; All Unknown Parties, Claiming by, through, under or against Any of the above-Named Defendants, Whether Said Unknown Parties Claim As Spouses, Heirs, Devisees, Grantees, Assignees, Lienors, Creditors, Successors in Interest, Trustees or Other Claimants, Appellees.

No. 93-01986.

District Court of Appeal of Florida, Second District.

February 23, 1994.

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.