DACRYN CORPORATION, A DISSOLVED CORPORATION, AND THOMAS HEIL AND DORIS HEIL, INDIVIDUALLY AND AS TRUSTEES OF THE ASSETS OF DACRYN CORPORATION, APPELLANTS,
v.
RAY PEACOCK, APPELLEE
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Dacryn Corporation appealed the trial court's dismissal of counts alleging negligence, breach of fiduciary duty, and indemnity against an attorney who represented it in a property transaction. The court affirmed dismissal of the indemnity count but reversed the dismissal of the negligence and breach of fiduciary duty counts to the extent they were dismissed with prejudice, allowing those claims to proceed in a separate action.
The court held that the indemnity claim was properly dismissed because it failed to allege the required elements. Because the indemnity claim must fall, the related negligence and breach of fiduciary duty claims cannot be maintained as third-party claims. However, the dismissal of the negligence and breach of fiduciary duty counts should have been without prejudice, allowing Dacryn to assert those claims in a separate action against Peacock.
[1] A claim for indemnity requires allegations establishing the elements of an indemnity claim, and failure to do so warrants dismissal.
[2] A claim for indemnity may not be maintained as a third-party claim when the underlying indemnity claim fails.
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Join FLexlaw to unlock all legal intelligence“because the indemnity claim must fall, the related claims in Counts X and XI may not be maintained as third party claims”
Establishes that third-party claims for negligence and breach of fiduciary duty cannot survive when the underlying indemnity claim fails
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Join FLexlaw to unlock all legal intelligenceAmeriner Corporation sued Dacryn Corporation for breach of warranty after purchasing property from Dacryn, claiming the State of Florida had asserted …
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DANAHY, Acting Chief Judge.
The appellants (Daeryn) urge this court to find that the trial court erred in dismissing with prejudice Counts X, XI and XII of their amended third party complaint. We affirm in part and reverse in part.
This action was brought by Ameriner Corporation as plaintiff against Daeryn. Ameri-ner had purchased certain property from Da-eryn pursuant to a warranty deed. Ameri-ner alleged that the State of Florida had asserted ownership to a substantial portion of the property conveyed to it by Daeryn, as sovereign navigable waters of the state. Ameriner sought damages and equitable relief.
Daeryn filed a third party complaint, later amended, alleging that the appellee (Peacock), who is an attorney, represented Da-eryn both in its purchase and in its sale of the subject property. Count X of the amended third party complaint asserted a claim for negligence against Peacock. Count XI asserted a claim for breach of fiduciary duty. Count XII asserted a claim of indemnity, alleging that as between Daeryn and Peacock, Peacock should be responsible and stand for any liability to Ameriner to which Daeryn may be subjected in this action.
We agree with the trial court that Count XII failed to allege the elements of an indemnity claim and was properly dismissed. See Houdaille Industries, Inc. v. Edwards, 374 So. 2d 490 (Fla.1979). We also agree with the trial court that because the indemnity claim must fall, the related claims in Counts X and XI may not be maintained as third party claims. See Fla.R.Civ.P. 1.180(a); Leggiere v. Merrill Lynch Realty/Florida, 544 So. 2d 240 (Fla. 2d DCA 1989).
However, we find that the trial court erred in dismissing Counts X and XI with prejudice. The claims asserted in those counts may be asserted by Daeryn in a separate action against Peacock. The dismissal with prejudice would foreclose such a separate action.
Accordingly, we affirm the dismissal with prejudice of Count XII (indemnification) of the amended third party complaint and we affirm the dismissal of Count X (negligence) and Count XI (breach of fiduciary duty). We reverse the dismissal of Counts X and XI to the extent that such dismissal is with prejudice.
Affirmed in part and reversed in part.
CAMPBELL and BLUE, JJ., concur.
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Kendall v. Gilmore, 915 So. 2d 681 (Fla. 3d DCA 2005)…the portion of the order that dismisses the claims with prejudice. The claims asserted in the Third Party First Amended Complaint may be asserted in a separate action against the appellees, should appellants choose to do so. Dacryn Corp. v. Peacock, 630 So. 2d 1169 (Fla. 2d DCA 1993). Affirmed in part, reversed in part.…
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Tsafatinos v. Fam. Dollar Stores OF Fla., Inc., 116 So. 3d 576 (Fla. 2d DCA 2013)…since we find that Mr. Tsafatinos’ claim for common law indemnification failed to state a cause of action, the related claim for breach of contract may not be maintained as a third-party claim. See Fla. R. Civ. P. 1.180(a); Dacryn Corp. v. Peacock, 630 So. 2d 1169, 1170 (Fla. 2d DCA 1993); see also Leggiere v. Merrill Lynch Realty/Fla., Inc., 544 So. 2d 240, 241-42 (Fla. 2d DCA 1989) (holding that the 1984 amendment to rule 1.180(a) was meant to permit a claim “in addition to but not in the absence of a claim…
Authorities Cited
- Houdaille Indus., Inc. v. Edwards, 374 So. 2d 490 (Fla. 1979)
- Leggiere v. Merrill Lynch Realty/Florida, Inc., 544 So. 2d 240 (Fla. 2d DCA 1989)