dissenting:
I would affirm the judgment entered by the trial court.
In arriving at its conclusion that the trial court erred in entering judgment dismissing appellants’ complaint, the majority relies entirely on this Court’s opinion in Travelers Indemnity Co. v. Hudson, 15 Ariz.App. 371, 488 P.2d 1008 (1971). Although I concurred in that opinion, I am now convinced that we incorrectly interpreted Rule 41(b) in Travelers. In addition, Travelers appears to me to be directly contrary to the Arizona Supreme Court’s prior opinion in Anguiano v. Transcontinental Bus System, 76 Ariz. 246, 263 P.2d 305 (1953).1 See also, Fovargue v. Singer, 77 Ariz. 305, 270 P.2d 1090 (1954); Flynn v. Johnson, 3 Ariz.App. 369, 414 P.2d 757 (1966); Klinger v. Conelly, 2 Ariz.App. 169, 407 P.2d 108 (1965).
To me the intent of Rule 41(b), is clearly expressed in plain and unambiguous language. In contrast to the provisions of Rule 41(a), which provide that in a dismissal which is voluntary, the dismissal is without prejudice unless otherwise stated, Rule 41(b) provides in essence that dismissals which are involuntary are to be with prejudice unless otherwise specified.
The pertinent provision of Rule 41(b) is as follows:
“ Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a party under Rule 19, operates as an adjudication upon the merits.” (Emphasis added).
There can be no question but that the above-quoted provision envisions that pursuant to Rule 41(b) many dismissals which would not otherwise have a res judicata effect are to be given that effect when the Court’s order does not “otherwise specify”. In analyzing the quoted provision, the key question becomes, what must the trial court “otherwise specify”? In Travelers, without particular attention to the specific language of the rule, we indicated that a statement of the reason for the dismissal in the order constituted a showing that the ruling was not in fact an adjudication on the merits, and from this we concluded that the trial court had “otherwise specified” in accordance with the provisions of Rule 41(b). This reasoning ignores the very precise language used in Rule 41(b). As stated by the Arizona Supreme Court in Anguiano, supra, Rule 41(b) is applied to involuntary dismissals without regard to the reasons or causes of such dismissals. Under the language of the rule, in order to avoid a res judicata effect the judge is required to “otherwise specify” in every involuntary dismissal that the dismissal is not to “operat[e] as an adjudication on the merits”. (Emphasis added). The only exceptions contained in the rule are those relating to dismissals based upon lack of jurisdiction, improper venue and failure to join a party under Rule 19. Rule 41(b) requires that the trial judge make a determination that, notwithstanding the provisions of Rule 41(b), the particular dismissal involved is not to operate as an adjudication on the merits, and this determination must be specified in the order of dismissal. The requirement as to specificity goes to how the order of dismissal is to operate, and not to what constitutes the reasons for dismissal. In my opinion the happenstance that the trial judge states the reason for the dismissal in his order is immaterial and cannot logically be considered as indicating that he has made a determination as to how that particular dismissal is to operate. It is this latter determination that is required by the provisions of Rule 41(b).
Admittedly, the failure of a trial judge to specify in a Rule 41(b) involuntary dismissal *8that the dismissal is not to operate as an adjudication on the merits can have harsh results. However, when such an order is entered, the plaintiff is not without a remedy. Initially, he can make a timely request that the trial judge amend the order of dismissal so as to expressly specify that the dismissal is not to operate as an adjudication on the merits. If the trial judge in the exercise of his discretion refuses to so specify, all is not lost. The remedy of appeal if timely exercised is always available to plaintiff to determine whether the trial judge has abused his discretion in that regard.
Here, the appellants did not attempt to take advantage of either of these remedies. Rather, they have allowed the trial court’s prior order of dismissal to become final, and that finality now includes the consequences imposed by reason of Rule 41(b). The trial judge having failed to otherwise specify, the prior involuntary dismissal operated as an adjudication on the merits, and appellants’ subsequent complaint filed in this action was barred by the application of res judicata principles.
For the reasons stated above, I would therefore affirm the trial court’s judgment dismissing appellants’ complaint.
. Inasmuch as no petition for review was filed regarding the disposition made by this Court in Travelers, supra, the Arizona Supreme Court has not had an opportunity to resolve what I consider to be a direct conflict between its prior decision in Anguiano, and this Court’s decision in Travelers.