McAnally v. Craig

FASTRACK APPEAL

HERSEY, Judge.

In this action to determine entitlement to certain property in an estate, the trial court entered an order dismissing with prejudice one count of a four count complaint. The property at issue in the dismissed count is the subject of a suit which had been filed earlier in North Carolina, the domicile of the decedent. While we concur in the trial court’s conclusion that the matter should be resolved in the North Carolina action where jurisdiction was first acquired, we find error in treating the dismissal as one with prejudice. While unlikely, it is possible that the North Carolina court might fail or refuse to determine entitlement to the assets in question. Thus, we find it appropriate to strike from the final judgment the “with prejudice” aspect, so that the matter may be revisited again by a Florida court should entitlement not be satisfactorily resolved elsewhere. Cf Dhondy v. Schimpeler, 528 So.2d 403 (Fla. 3d DCA), rev. denied, 534 So.2d 401 (Fla.1988).

With the exception noted, we affirm the judgment appealed.

MODIFIED AND, AS MODIFIED, AFFIRMED.

DOWNEY and GUNTHER, JJ., concur.