Luther, Collier, Hodges & Cash, LLP – Attorneys at Law

FLORIDA – Civil Procedure– Res Judicata

PNC filed a foreclosure action against Gardenia and Orlando Otero that was dismissed without prejudice. PNC then filed a second foreclosure action against the Otero’s for the same default and the trial court dismissed the suit reasoning the claim was barred by the doctrine of res judicata. The lower court cited PNC’s failure to issue a new default notice as fatal to their case.

Upon appeal, the 3rd DCA held that the trial court erred in concluding the instant action was barred, because a claim of res judicata cannot be supported by a dismissal without prejudice, “as it does not constitute an adjudication on the merits”. The appellate court explained: “The dismissal of a cause of action can either be with prejudice, same being an adjudication on the merits, or without prejudice, which is not adjudication on the merits and is no bar to a subsequent suit on the same cause of action.” “…and here, the initial order of dismissal specified it was indeed without prejudice.”

The appellate court further explained that there was no practical reason for an additional notice of default and that the original notice remained valid to file a second complaint. Accordingly, the Court reversed and remanded the case back to the Circuit Court.

PNC Bank, N.A. v. Gardenia Otero, et al. (Appeal from Miami-Dade County Circuit Court: 3D18-56)

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