JANICE R. SCHMID, EXECUTRIX OF THE ESTATE OF NORMAN C. SCHMID, DECEASED, ET AL., APPELLANTS,
v.
JULIAN SAPHIER, HEREL, INC., A FLORIDA CORPORATION, AND MICHAEL C. BURROWS, APPELLEES
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Schmid challenged a cross claim filed against her in a construction defect case, arguing the court lacked jurisdiction to entertain third-party practice not yet permitted under the procedural rules. The appellate court affirmed, holding that although the procedural mechanism was not authorized at the time, the court had subject matter jurisdiction and the defect was harmless error.
The trial court had subject matter jurisdiction and the parties were properly before it, making any procedural defect a harmless error. Although the cross claim violated the procedural rules then in effect, the court's jurisdictional power to adjudicate the subject matter was not lacking.
“The court had the power to adjudicate the subject matter presented in the cross claim and the parties were actually before the court. It had jurisdiction.”
Establishes that subject matter jurisdiction and proper parties before the court are the relevant factors, not the procedural mechanism used.
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Join FLexlaw to unlock all legal intelligenceSaphier sued Herel and Burrows for damages for breach of contract and negligence in building construction. Herel filed a cross claim against Schmid, a…
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Appellee Saphier filed suit against appel-lees Herel and Burrows claiming damages for breach of contract and negligence in the construction of a building. After obtaining leave of court, Herel filed a cross claim against appellant Schmid alleging that he is or may be liable to Herel for all or part of Saphier’s claim against Herel. The court overruled Schmid’s motion to dismiss the cross claim and judgment was entered against Herel, and judgment in the same amount was entered for Herel and against the cross defendant Schmid. Schmid appealed contending the court was without jurisdiction to entertain the cross claim and that this was third party practice not permitted by the rules.
The cross claim was third party practice not permitted by the rules until the adoption of Rule 1.41, Fla.R.Civ.P., 30 F.S.A., effective January 1, 1966. The Supreme Court declared that the amendment shall govern all proceedings in actions brought after it takes effect and also all future proceedings in actions then pending.1 While that rule did not govern these proceedings, its adoption does establish the fact that third party practice involves only a question of practice and procedure.
The court had the power to adjudicate the subject matter presented in the cross claim and the parties were actually before the court. It had jurisdiction. Even though the court exercised its jurisdiction in a manner not then permitted by the rules, the error is merely one of practice and procedure regardless of the fact that it has been said that the court was without jurisdiction” to entertain a third party proceeding.2
Should we now reverse for this procedural error, then in future proceedings in this action, the rule would permit the third party practice cross claim. This compels us to the conclusion that the error was harmless.
Affirmed.
SMITH, C. J., ANDREWS, J., and MELVIN, WOODROW M., Associate Judge, concur.
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Citator
Cited By
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Dade Cnty. v. Apgar & Markham Constr. Co., Inc., 29 Fla. Supp. 156 (Dade Cty. Cir. Ct. 1967)…interpretation and application of the procedural rules governing third party practice [*158] in Florida. Third party practice involves only a question of practice and procedure, as' distinguished from jurisdiction considerations. Schmid v. Saphier, 184 So. 2d 908 (4th D.C.A. Fla. 1966). Third party practice in Florida, as provided by the federal rules, was not specifically permitted by the Florida rules until January 1, 1966. Rule 1.180, Florida Rules of Civil Procedure (formerly Rule 1.41), providing for t…
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Brady v. P3 Grp. (LLC) & Hypower, Inc., 98 So. 3d 1206 (Fla. 3d DCA 2012)…nized in Florida practice under then Florida Rule of Civil Procedure 1.13(8),7 but separate causes of action against third-party defendants were not.8 See Fla. Fuel Oil, Inc. v. Springs Villas, Inc., 95 So. 2d 581, 588 (Fla.1957); Schmid v. Saphier, 184 So. 2d 908 (Fla. 4th DCA 1966); Pan Am. Surety Co. v. Jefferson Constr. Co., 99 So. 2d 726 (Fla. 3d DCA 1958); City of Boca Raton v. Sharp, 107 So. 2d 271 (Fla. 2d DCA 1958); see generally, Dennis J. McGillicuddy, Note, Third-Party Practice, 18 U. Fla. L. R. 9…
Authorities Cited
- PAN Am. Sur. Co. v. Jefferson Constr. Co. & Emanuel Elec. Co., Inc., 99 So. 2d 726 (Fla. 3d DCA 1958)
- City OF Boca Raton v. K. L. "Jack" Sharp, 107 So. 2d 271 (Fla. 2d DCA 1958)
- In re Fla. Rules OF Civil Procedure 1965 Revision, 178 So. 2d 15 (Fla. 1965)