We agree with the trial judge’s underlying premise that the action was not maintainable in Florida due to the forum selection clause contained within the instrument sued on. Our concern, however, is that by awarding summary final judgment in ap-pellees’ favor, the order under review may be interpreted as having a preclusive effect upon appellant’s attempt to assert the action in the proper forum. For this reason we treat the order in appellees’ favor as though it had been entered on the outstanding motion to dismiss and we affirm the order as granting that relief, without prejudice to the appellant’s rights.

Affirmed.