TURNER CONSTRUCTION COMPANY AND TRAVELERS CASUALTY AND SURETY COMPANY, APPELLANTS,
v.
E & F CONTRACTORS, INC., APPELLEE
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Turner Construction appeals the trial court's decision to strike its affirmative defense of set-off in E & F Contractors' payment suit on a construction subcontract. The court affirmed, holding that set-off claims arising from different subcontracts constitute permissive counterclaims that may be severed without prejudice when other pending litigation addresses the same issues.
The trial court did not abuse its discretion in striking the set-off defense because it constitutes a permissive counterclaim not arising out of the same transaction or occurrence as the main claim, and may be severed when the issues are pending in other litigation without prejudicing the defending party.
[1] A trial court does not abuse its discretion by striking an affirmative defense of set-off when the set-off claim is the subject of other pending litigation between the pa…
[2] A set-off claim that arises from a different transaction or occurrence than the main claim is considered a permissive counterclaim.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“a permissive counterclaim is one that does not arise out of the transaction or occurrence that is the subject matter of the present claim”
Establishes the legal definition of permissive counterclaim used to classify Turner's set-off defense
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Join FLexlaw to unlock all legal intelligenceE & F Contractors entered into four separate subcontracts with Turner Construction for work on different construction projects. E & F sued Turner for …
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SUAREZ, J.
Turner Construction Company and its surety, Travelers Casualty and Surety Company, (collectively, “Turner”) appeal the order granting E & F Contractors, Inc.’s (“E & F”) motion to abate affirmative defenses and entry of final summary judgment for E & F. We affirm.
Turner contends that the trial court erred by striking, without prejudice, its affirmative defense of set-off in E & F’s suit on a construction subcontract. E & F asserts that the orders should be affirmed because Turner’s set-off claim is the subject of other pending litigation between the parties.
E & F entered into four separate subcontracts to perform work for Turner on four different construction projects. E & F filed four separate suits against Turner for payment pursuant to each of the subcontracts. In the instant case, E & F seeks $53,770.20 for work that it performed pursuant to the Alexan subcontract. Turner agrees that the amount is unpaid.
However, it asserts set-off as an affirmative defense, claiming that E & F owes Turner more than $53,770.20 for its deficient and defective work on the other projects that the parties are presently litigating. E & F moved to abate the set-off claim and for summary judgment, arguing that set-off is unavailable because the set-off claims and the instant claim each arise out of different subcontracts and different construction projects.
The trial court granted E & F’s motion. Instead of abating the action, the trial court struck the affirmative defense of set-off and entered final summary judgment in E & F’s favor.
We affirm because the trial court did not abuse its discretion by striking Turner’s affirmative defense of set-off. The affirmative defense of set-off in the instant case is in the nature of a permissive counterclaim, and is the subject of other pending suits between the parties. See Campbell v. Gordon, 674 So. 2d 783 (Fla. 1st DCA 1996)(a permissive counterclaim is one that does not arise out of the transaction or occurrence that is the subject matter of the present claim).
It is within a trial judge’s discretion to sever a permissive counterclaim from the main claim if there is no evidence of prejudice. See Whigum v. Heilig-Meyers Furniture, Inc., 682 So. 2d 643 (Fla. 1st DCA 1996).
Here, the trial court’s order does not prejudice Turner because Turner still has the opportunity to fully litigate its set-off claims in the pending lawsuits arising out of its other subcontracts with E & F. Jones v. Equitable Life Assur. Soc., 126 Fla. 527, 171 So. 317 (1936) (holding that the appellants’ alleged error in litigating a foreclosure suit without litigating the counterclaim at the same time was harmless error because it could be brought separately).
Furthermore, the trial court’s order striking the set-off claim promotes the interests of judicial economy, and avoids the potential of inconsistent judgments. No abuse of discretion is evident. See Orange Julius Realty Corp. v. Sunshine Toy Ctr., 251 So. 2d 681, 682 (Fla. 3d DCA 1971)(“[a]n appellate court will not interfere with the procedural rulings of a trial judge unless a party is deprived of a substantial right by the procedure employed”).
Affirmed.
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Strader v. Carpenters Crest Owners Ass'n, Inc., 968 So. 2d 621 (Fla. 2d DCA 2007)…and remanded. LaROSE, J„ and ST. ARNOLD, JACK R., Associate Judge, Concur. . Although it is within the trial court’s discretion to sever a permissive counterclaim if there is no evidence of prejudice, Turner Constr. Co. v. E & F Contractors, Inc., 939 So. 2d 1108, 1109 (Fla. 3d DCA 2006), the trial court here dismissed the counterclaim with prejudice, thus potentially foreclosing any further consideration of the claim in any proceeding.…
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Am. Integrity Ins. Co. v. Estrada (Fla. 3d DCA 2019)…mend this defense to allege the claimed insurance fraud with the requisite specificity. See Morgan v. 11 The standard of review of an order striking an affirmative defense is abuse of discretion. See Turner Constr. Co. v. E & F Contractors, Inc., 939 So. 2d 1108, 1109 (Fla. 3d DCA 2006). An order denying a defendant’s motion to amend its affirmative defenses is also reviewed for an abuse of discretion. See Morgan v. Bank of N.Y. Mellon, 200 So. 3d 792, 794-95 (Fla. 1st DCA 2016). Bank of N.Y. Mellon, 20…
Authorities Cited
- Perez v. Sherrie D. Byrd, 682 So. 2d 643 (Fla. 5th DCA 1996)
- Campbell v. Gordon, 674 So. 2d 783 (Fla. 1st DCA 1996)
- Orange Julius Realty Corp. v. Sunshine TOY Ctr., Inc., 251 So. 2d 681 (Fla. 3d DCA 1971)
- Jones v. The Equitable Life Assurance Soc'y of the United States, 126 Fla. 527 (Fla. 1936)