Miami Super Cold Co. v. Giffin Industries, Inc.
| Decision Date | 28 September 1965 |
| Docket Number | No. 64-991,64-991 |
| Citation | 178 So.2d 604 |
| Parties | MIAMI SUPER COLD CO., Inc., Appellant. v. GIFFIN INDUSTRIES, INC., a corporation, Appellee. |
| Court | Florida District Court of Appeals |
Nichols, Gaither, Beckham, Colson & Spence and Robert Orseck, Curry & Shamas, Miami, for appellant.
Raphael K. Yunes, Miami Beach, for appellee.
Before HENDRY, C. J., and CARROLL and SWANN, JJ.
This is an appeal by the plaintiff below from an adverse judgment entered on the pleadings.
The factual background is revealed in the opinion of this court in Nutt v. James City, Inc., Fla.App.1964, 162 So.2d 700. Mrs. Nutt obtained judgment against Miami Super Cold Co., Inc. for alleged faulty installation of an air conditioning duct in certain business premises which fell and injured her. Giffin Industries, Inc. was the sub-contractor under Miami Super Cold. In the Nutt case, at a time when Giffin was not a party to the cause, Super Cold attempted to join Giffin as respondent to a third party claim. That attempted crossclaim by Super Cold against Giffin was dismissed, as there was no authority for it under the rules of civil procedure. See Pan American Surety Company v. Jefferson Construction Company, Fla.App.1958, 99 So.2d 726. And, as held in City of Boca Raton v. Sharp, Fla.App.1958, 107 So.2d 271, such dismissial of the attempted third party claim against Giffin was for want of jurisdiction and not on any other ground. That order was designated as being with prejudice. Our affirmance in the Nutt case (162 So.2d 700) included approval of the dismissal of the crossclaim .
In the instant case, which was a separate action by Super Cold against Giffin for indemnity, Giffin answered denying negligence and pleading the prior dismissal of the crossclaim with prejudice as res judicata. Based thereon the trial court granted a motion by Giffin for judgment on the pleadings.
On this appeal Super Cold contends, and we agree, that addition of the words 'with prejudice' to the order of dismissal for want of jurisdiction did not operate to change the order to a ruling on the merits.
Although the dismissal of a complaint or crossclaim for want of jurisdiction is not an adjudication on the merits (rule 1.35, Fla.R.C.P., 30 F.S.A.), it is proper to designate such a dismissal as being with prejudice, in order to preclude it from being refiled in that cause where there is a want of jurisdiction. But 'with prejudice', as so used in such order of dismissal, does not operate to bar the filing of suit thereon in a separate cause or court having jurisdiction. It was so held in two cases in the State of New York. Putvin v. Buffalo Electric Co., 5 N.Y.2d 447, 186 N.Y.S.2d 15, 158 N.E.2d 691; Brown v. Bullock, 17 A.D.2d 424, 235 N.Y.S.2d 837. In the Brown case, in which reference also was made to the earlier Putvin decision where this precise question was involved, it was said:
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Brown v. Brown
...under the rule, would not be res judicata on the merits of her present independent action. See, e.g., Miami Super Cold Co. v. Giffin Industries, Inc., 178 So.2d 604 (Fla. 3d DCA 1965); City of Boca Raton v. Sharp, 107 So.2d 271 (Fla. 2d DCA 1958). See also Board of Public Instruction of Dad......
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Strachan v. Mutual Aid & Neighborhood Club, Inc., Docket No. 31118
...no bar to the bringing of plaintiff's action in the appropriate forum, the circuit court. See also Miami Super Cold Co. Inc. v. Giffin Industries, Inc., 178 So.2d 604, 605 (Fla.App., 1965). Presented with a "with prejudice" dismissal on a different set of facts, my decision might well be di......
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Mirabal v. State, Dept. of Revenue, 89-979
...481 So.2d 929 (Fla. 4th DCA 1985); Henry v. Lemac Builders, Inc., 245 So.2d 115 (Fla. 3d DCA 1971); Miami Super Cold Co. v. Giffin Industries, Inc., 178 So.2d 604 (Fla. 3d DCA 1965). ...
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Hook v. Bay Financial Sav. Bank
...DCA 1989); Liachoff v. Marien, 376 So.2d 468 (Fla. 4th DCA 1979), cert. denied, 386 So.2d 639 (Fla.1980); Miami Super Cold Co. v. Giffin Indust., Inc., 178 So.2d 604 (Fla. 3d DCA 1965); City of Boca Raton v. Sharp, 107 So.2d 271 (Fla. 2d DCA 1958); Mabson v. Christ, 104 Fla. 606, 140 So. 671 ...