Markow v. American Bay Colony, Inc.

District Court of Appeal of Florida

Markow v. American Bay Colony, Inc.

478 So. 2d 413, 10 Fla. L. Weekly 2486, 1985 Fla. App. LEXIS 16599

CourtDistrict Court of Appeal of Florida

DecidedNovember 5, 1985

DocketNo. 85-675

StatusPublished

Cited by2 cases

This text of 478 So. 2d 413 (Markow v. American Bay Colony, Inc.) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Markow v. American Bay Colony, Inc., 478 So. 2d 413, 10 Fla. L. Weekly 2486, 1985 Fla. App. LEXIS 16599 (Fla. Ct. App. 1985).

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Opinion

SCHWARTZ, Chief Judge.

The plaintiff-appellant appeals from a judgment entered against him on the grounds that the dismissal of a prior federal action was res judicata of his present claim. The previous case was dismissed, however, only because it failed properly to assert a basis for federal jurisdiction under 42 U.S.C. § 1983. Accordingly, the Eleventh Circuit opinion affirming that action expressly stated:

[I]n dismissing the original complaint, the court did so without prejudice. Subsequently, in denying Markow’s motion for leave to amend, the court gave no indication whether its ruling was with or without prejudice. We therefore consider the court’s order as not having dismissed the action with prejudice. Consequently, Markow is at liberty to resume this litigation, [e.o.]

Markow v. American Bay Colony, Inc., 751 F.2d 392, slip op. at 3-4 (11th Cir.1984). On the elementary ground that, by definition, a previous disposition expressly effected without prejudice cannot be res ju-dicata, see 32 Fla.Jur.2d Judgments and Decrees § 136 (1981), the judgment below is reversed for further consistent proceedings.

Reversed.

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