Dubow v. Acree

148 So. 3d 146, 2014 Fla. App. LEXIS 15250, 2014 WL 4851738

• Court: District Court of Appeal of Florida
• Decided: October 1, 2014
• Docket: 2D13-4188
• Status: Published

Opinion

PER CURIAM.

Robert E. Dubow, as Successor Trustee of the American Land and Mortgage Trust Number 1119, dated December 9, 2005; and Stephen D. Vaughan challenge the circuit court’s order dismissing their action for lack of prosecution under Florida Rule of Civil Procedure 1.420(e) and a subsequent order denying their motion to vacate the prior order and for rehearing. We find no error in the dismissal of the case for lack of prosecution or the later order denying the motion to vacate and for rehearing. Nevertheless, the circuit court should not have dismissed the action -with prejudice.

A dismissal for failure to prosecute under rule 1.420(e) is to be without prejudice. Se. Mortg. Co. v. Sinclair, 632 So.2d 677, 678 (Fla. 2d DCA 1994); Nektaredes v. Sagonias, 432 So.2d 769, 770 (Fla. 2d DCA 1983); McDaniel v. Onkey, 422 So.2d 70, 70 (Fla. 2d DCA 1982). As we did in McDaniel, we strike the words “with prejudice” from the order dismissing the case. As so amended, we affirm the order of dismissal and the order denying the motion to vacate and for rehearing. See McDaniel, 422 So.2d at 70-71.

Affirmed as modified.

CASANUEVA, VILLANTI, and WALLACE, JJ., Concur.