HAROLD E. KENDALL, SR., ET AL., APPELLANTS,
v.
MARTHA K. GILMORE, ET AL., APPELLEES
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Harold E. and Elizabeth H. Kendall appealed an order dismissing their third-party complaint with prejudice in a trust dispute. The court affirmed the dismissal of the complaint itself but reversed the dismissal with prejudice, allowing the Kendalls to refile their claims in a separate action.
The court held that the trial court properly dismissed the complaint because it did not state a claim arising from the same transaction or occurrence as the plaintiff's claim and could not maintain valid contribution, indemnification, or subrogation claims. However, the court reversed the dismissal with prejudice, allowing the Kendalls to assert their claims in a separate action if they chose to do so.
[1] A third-party complaint must arise out of the transaction or occurrence that is the subject matter of the plaintiff's claim.
[2] A trial court may dismiss a third-party complaint with prejudice if further amendment would not be fruitful.
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Join FLexlaw to unlock all legal intelligence“The trial court properly dismissed the appellants' complaint because it did not state a claim "that arises out of the transaction or occurrence that is the subject matter of the plaintiffs claim." Fla. R. Civ. P. 1.180(a).”
Establishes the standard for third-party complaints under Florida Rule of Civil Procedure 1.180(a)
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Join FLexlaw to unlock all legal intelligenceThe Kendalls' son filed a complaint against his father, brother, and the trust's independent trustee alleging improprieties with the Lizzarraga Trust …
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PER CURIAM.
Harold E. and Elizabeth H. Kendall appeal an order dismissing their Third Party First Amended Complaint with prejudice. We affirm the order insofar as it dismisses the complaint; we reverse the portion of the order dismissing with prejudice. The appellants’ son, Harold E. Kendall Jr., filed a complaint against his father, his brother, Peter H.J. Kendall, and Maryanne Ballard, the independent trustee, alleging improprieties with the Lizzarraga Trust, which was created by the father for the use and benefit of the mother. The complaint alleged, inter alia, fraudulent transfers, breach of fiduciary duty, and civil conspiracy. The complaint was amended to include the mother after the trust assets were transferred to her. The appellants filed third party claims four years later against the appellees herein, Martha K. Gilmore and Susan K. Bradford, their daughters, another son, and John G. Immer. The third party claims sought a judicial declaration as to the trust assets transferred to the mother, and sought a constructive trust over the property in two other trusts. No contribution, indemnification or subrogation claims were raised; 'the appellees moved to dismiss the complaint for failure to raise such claims or for a more definite statement. The court dismissed the third party complaint.
Thereafter, the appellees filed an Amended Third Party Complaint that added a request for an injunction, and a claim to quiet title to property held by the trusts; no contribution, indemnification or subrogation claims were alleged. The third-party defendants filed a motion to dismiss with prejudice. After a hearing, the court granted the motion and dismissed the complaint with prejudice. This appeal follows.
The trial court properly dismissed the appellants’ complaint because it did not state a claim “that arises out of the transaction or occurrence that is the subject matter of the plaintiffs claim.” Fla. R. Civ. P. 1.180(a). In this case, the appellants’ amended complaint could not maintain a valid claim for contribution, indemnification or subrogation. Rupp v. Philpot, 619 So. 2d 1047 (Fla. 5th DCA 1993); Tindall v. Travelers Indem. Co., 613 So. 2d 1369 (Fla. 2d DCA 1993); Matey v. Reinman, 599 So. 2d 201 (Fla. 2d DCA 1992); Leggiere v. Merrill Lynch Realty/Florida, Inc., 544 So. 2d 240 (Fla. 2d DCA 1989). See Boyd v. Halstead, 817 So. 2d 1092 (Fla. 2d DCA 2002). The facts in the Third Party Complaint and the Third Party First Amended Complaint demonstrate that further amendment would not be fruitful.
We reverse, however, 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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Ives v. Tate Gettinger, 45 Fla. L. Weekly D619 (Fla. 3d DCA 2020)…the trial court’s pretrial 1 Taken from the poem “Mending Wall,” by Robert Frost, part of a collection of his poems in the book North of Boston (Henry Holt and Co., 1914). dismissal orders, and affirm in all respects. See Kendall v. Gilmore, 915 So. 2d 681, 682 (Fla. 3d DCA 2005) (holding: “The trial court properly dismissed the appellants' complaint because it did not state a claim ‘that arises out of the transaction or occurrence that is the subject matter of the plaintiff's claim.’ In this case, th…
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Ives v. Tate Gettinger, 45 Fla. L. Weekly D619 (Fla. 3d DCA 2020)…the trial court’s pretrial 1 Taken from the poem “Mending Wall,” by Robert Frost, part of a collection of his poems in the book North of Boston (Henry Holt and Co., 1914). dismissal orders, and affirm in all respects. See Kendall v. Gilmore, 915 So. 2d 681, 682 (Fla. 3d DCA 2005) (holding: “The trial court properly dismissed the appellants' complaint because it did not state a claim ‘that arises out of the transaction or occurrence that is the subject matter of the plaintiff's claim.’ In this case, th…
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Ives v. Tate Gettinger and Anamaria Gettinger, 45 Fla. L. Weekly D619 (Fla. 3d DCA 2020)…the trial court’s pretrial 1 Taken from the poem “Mending Wall,” by Robert Frost, part of a collection of his poems in the book North of Boston (Henry Holt and Co., 1914). dismissal orders, and affirm in all respects. See Kendall v. Gilmore, 915 So. 2d 681, 682 (Fla. 3d DCA 2005) (holding: “The trial court properly dismissed the appellants' complaint because it did not state a claim ‘that arises out of the transaction or occurrence that is the subject matter of the plaintiff's claim.’ In this case, th…
Authorities Cited
- Leggiere v. Merrill Lynch Realty/Florida, Inc., 544 So. 2d 240 (Fla. 2d DCA 1989)
- Tindall v. The Travelers Indem. Co., 613 So. 2d 1369 (Fla. 2d DCA 1993)
- Rupp v. Philpot, 619 So. 2d 1047 (Fla. 5th DCA 1993)
- Matey v. Reinman, 599 So. 2d 201 (Fla. 2d DCA 1992)
- Dacryn Corp. v. Peacock, 630 So. 2d 1169 (Fla. 2d DCA 1993)
- Boyd v. Halstead, 817 So. 2d 1092 (Fla. 2d DCA 2002)