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Markow v. American Bay Colony, Inc.

District Court of Appeal of Florida, Third District
Jan 2, 1986
478 So. 2d 413 (Fla. Dist. Ct. App. 1986)

Opinion

No. 85-675.

November 5, 1985. Rehearing Denied January 2, 1986.

Appeal from the Circuit Court, Dade County, Joseph J. Gersten, J.

Herbert L. Markow, Miami, in pro. per.

Carey, Dwyer, Cole, Eckhart, Mason Spring and Carol B. Haber, and Pamela Beckham, Miami, for appellees.

Before SCHWARTZ, C.J., and HENDRY and NESBITT, JJ.


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 judicata, see 32 Fla.Jur.2d Judgments and Decrees § 136 (1981), the judgment below is reversed for further consistent proceedings.

Reversed.


Summaries of

Markow v. American Bay Colony, Inc.

District Court of Appeal of Florida, Third District
Jan 2, 1986
478 So. 2d 413 (Fla. Dist. Ct. App. 1986)
Case details for

Markow v. American Bay Colony, Inc.

Case Details

Full title:HERBERT L. MARKOW, APPELLANT, v. AMERICAN BAY COLONY, INC., A FLORIDA…

Court:District Court of Appeal of Florida, Third District

Date published: Jan 2, 1986

Citations

478 So. 2d 413 (Fla. Dist. Ct. App. 1986)

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