Markow v. American Bay Colony, Inc. (478 So. 2d 413, 1985)

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.