National Carloading Corp. v. GEMINI TRANSP., INC.

364 So.2d 504 (1978) NATIONAL CARLOADING CORP., a New Jersey Corporation, d/b/a ABC Air Freight Co., Appellant, v. GEMINI TRANSPORTATION, INC., et al., Appellees. No. 77-2644. District Court of Appeal of Florida, Third District. November 7, 1978. Rehearing Denied December 8, 1978. Robert L. Bell, Miami, for appellant. Franklin, Ullman, Kimler & Entin, North Miami Beach and Ronald A. Dion, Miami, for appellees. Before HAVERFIELD, C.J., and PEARSON and HENDRY, JJ. PER CURIAM. The appellant, who was the plaintiff in the trial court, appeals an order dismissing his cause for lack of prosecution. See Florida Rule of Civil Procedure 1.420(e). We affirm upon a holding that the record clearly reflects plaintiff's failure to proceed with this case for the periods of time specified. See Leithauser v. Harrison, 206 So.2d 222, 224 (Fla. 4th DCA 1968).[1] A further point by the plaintiff urges that the dismissal was improperly made "with prejudice." We agree, and strike from the order of dismissal the words "with prejudice" from the first line of the "ordered and adjudged" portion of the court's order of November 18, 1977, which is here appealed. Where the dismissal of an action is not upon the merits, the dismissal should be without prejudice. See Spolter Electrical Supplies, Inc. v. Kalb, 275 So.2d 594 (Fla. 4th DCA 1973). Affirmed in part; reversed in part. NOTES [1] "On a motion to dismiss for lack of prosecution, the issue is simply and exclusively whether there has been a failure to prosecute. If no action towards prosecution has been taken within a year, the trial judge may not exercise his discretion and must dismiss the cause."