McDaniel v. Onkey

422 So. 2d 70

• Court: District Court of Appeal of Florida
• Decided: November 17, 1982
• Docket: 82-48
• Status: Published

Opinion

422 So.2d 70 (1982)

Woodson McDANIEL, Appellant,
v.
Richard ONKEY, Appellee.

No. 82-48.

District Court of Appeal of Florida, Second District.

November 17, 1982.

Hugh Sawyer, St. Petersburg, for appellant.

Jana V. Jay of Napier & Donovan, Naples, for appellee.

PER CURIAM.

We find no error in the order of the trial court dismissing this action for lack of prosecution under Florida Rule of Civil Procedure 1.420(e). Neither do we find any abuse of discretion in the order of the trial court denying the motion to vacate the order of dismissal or reinstate the action. However, the dismissal "with prejudice" was improper.

There is no authority for a dismissal with prejudice when such dismissal is based solely on the failure to prosecute. See Bair v. Palm Beach Newspapers, Inc., 387 So.2d 517 (Fla. 4th DCA 1980), and Tapper v. Taunton, 371 So.2d 595 (Fla. 1st DCA 1979). We therefore strike the words "with prejudice" from the order of dismissal. As so amended, we affirm the order of dismissal and the order refusing to vacate the dismissal or reinstate the action.

OTT, C.J., and CAMPBELL and SCHOONOVER, JJ., concur.