adopted by a court to be enforced in court. Third, res judicata does not apply to the 2004 action which was dismissed for lack of prosecution. See Houswerth v. Neimiec, 603 So.2d 88, 89 (Fla. 5th DCA 1992) (finding that “a dismissal for lack of prosecution is not a ruling on the merits and therefore cannot be the basis of a subsequent res judicata argument”). Accordingly, we reverse the order of dismissal and remand with instructions to reinstate instant action and the preliminary injunctions against Alan Schiffman. 1 . We also note that the conduct giving rise to the instant breach of contract claim is wholly separate and distinct from the conduct alleged as the basis for the 2004 action. See Inter-Active Servs., Inc. v. Heathrow Master Ass'n., 809 So.2d 900, 902 (Fla. 5th DCA 2002)
holding that for res judicata purposes the cause of action is the same when substantially the same evidence would support a recovery in both actions recognizing the express reservation of the plaintiffs right to maintain a second action as an exception to the doctrine of res judicata holding that res judicata did not apply where a trial courts order was not a final judgment recognizing that res judicata does not apply unless the facts and evidence necessary to maintain suit are the same in both actions holding additional parties in second suit do not prevent the application of res judicata based on the first suit