GENERAL DYNAMICS CORPORATION, A NEW YORK CORPORATION, ET AL., APPELLANTS,
v.
ROBERT M. HEWITT, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
The Court holds that a common-law cause of action for misrouting is not inconsistent with the Motor Carrier Act and is preserved by statute.
The complaint purports to allege a statutory cause of action based on the Motor Carrier Act and a common-law cause of action for misrouting.…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Joinder Of Causes Of Action cases and more on FLexlaw
REVISED OPINION
The appellee, Robert M. Hewitt, was one of many defendants in an action instituted by Airlift International, Inc., and James B. Franklin, as Trustee. In his answer Hewitt counterclaimed against the plaintiffs, Airlift and Franklin as Trustee. He also filed third party complaints against James B. Franklin, individually and as an officer of Airlift; Lipman Redman, individually and as an officer of Airlift; William R. Price; General Dynamics Corporation; and several others.
General Dynamics moved to dismiss Amended Count II and Count III of Hewitt’s third-party complaint on various grounds. Airlift, Franklin, Redman, and Price moved to dismiss Amended Count II on various grounds. The court denied all motions to dismiss either count of Hewitt’s third-party complaint. This interlocutory appeal is from the order denying the motions to dismiss.
The appeal was not orally argued before the court because of the illness of counsel. Our opinion filed April 8, 1969, affirmed the trial court upon his denial of the motions to dismiss directed to Amended Count II and Count III of Hewitt’s third-party complaint. Upon the filing of timely petitions for rehearing by Airlift International, Inc., and General Dynamics Corporation, we granted the petitions and heard argument thereon.
THE MOTION TO DISMISS AMENDED COUNT II
Count II is in the nature of a stockholder’s derivative action. Hewitt maintains that it meets the requirements set forth in James Talcott, Inc. v. McDowell, Fla.App.1962, 148 So.2d 36.
The appellants urge that because Counts I, III, IV, and V of the complaint are based on Hewitt’s individual and per*563sonal claims against them, and Count II is based on Hewitt’s derivative right, Counts II and III cannot be joined. Rule 1.110(g), RCP (1967), 30 F.S.A., provides in part:
“(g) Joinder of Causes of Action; Consistency. A pleader may set up in the same action as many claims or causes of action or defenses in the same right as he has * * * ” (Emphasis added.)
It is clear that appellee Hewitt has joined one count in which he seeks damages for the corporation of which he is a stockholder with several counts in which he claims personal damages for the acts of the defendant-appellants, including the corporation itself. Several appellants raised this objection as a ground in their motions to dismiss, as they were required to do. Smith v. Coleman, 100 Fla. 1707, 132 So. 198 (1931). This objection does not bear on the issue of whether Hewitt has stated one or more causes of action in his pleadings. It bears rather on Hewitt’s right to join the derivative claim with his individual claims in one action. “One cannot in the same action sue in more than one distinct right or capacity.” 1 Am.Jur. 2d Actions § 125. The trial judge could have stricken Count II or dismissed the complaint without prejudice to Hewitt’s right to assert his claims in subsequent' litigation. Williams v. Ricou, 143 Fla. 360, 196 So. 667 (1940). In any event it was error to deny the motions to dismiss.
Appellants have advanced additional arguments to show why the motion to dismiss amended Count II should have been granted. But in view of our foregoing holding we need not consider those arguments.
THE MOTION TO DISMISS COUNT III
Hewitt’s Count III begins thus:
“And for a third cause of action Hewitt sues the counter and third party defendants, Airlift, Carmichael, individually and as Chairman of the Board of Airlift, Raymond, individually and as Secretary of Airlift, Franklin, individually and as President and Director of Airlift, Redman, individually and as Director of Airlift, Douglas, Dynamics and Slick, and re-alleges and re-avers, everything in the Answer heretofore filed, and re-alleges and re-avers Counts One and Two, making same a part hereof by reference, and says, further * * * ”
In Count III Hewitt seeks to recover compensatory and punitive damages upon a claim of fraud and conspiracy. General Dynamics (the only appellant which has presented a point directed to the order denying a motion to dismiss Count III) urges that although the count is prolix, it does not with sufficient particularity allege facts to support the charges of fraud and conspiracy and that the only reference to any overt act by General Dynamics is that it “aided and abetted in the conspiracy”. A close reading of Count III confirms the statement. Rule 1.120(b), RCP, requires that “In all averments of fraud * * *, the circumstances constituting fraud * * * shall be stated with such particularity as the circumstances may permit.” The allegations as to General Dynamics Corporation do not meet this requirement. Cf. Ocala Loan Company v. Smith, Fla.App.1963, 155 So.2d 711. We conclude that the trial court erred in entering its order denying the motion of General Dynamics Corporation to dismiss Count III of the third-party complaint.
The order appealed from is reversed with directions to dismiss amended Count II without prejudice to Hewitt’s right to institute a separate action upon the claims therein and with directions to dismiss Count III with leave to file an amended Count III if Hewitt shall be so advised.
Reversed and remanded with directions.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (11 total)
-
Peninsular Fla. Dist. Council of Assemblies of God v. PAN Am. Inv. & Dev. Corp., 450 So. 2d 1231 (Fla. 4th DCA 1984)…d that the trial court erred by dismissing Count I.. Cf. Parker v. Gordon, 442 So. 2d [*1233] 273 (Fla. 4th DCA 1983); Midway Shopping Mall, Inc. v. Airtech Air Conditioning, Inc., 253 So. 2d 900 (Fla. 3d DCA 1971); General Dynamics Corp. v. Hewitt, 225 So. 2d 561 (Fla. 3d DCA 1969). In Count II plaintiff attempted to state an action in negligence against defendant Heller, Weaver and Associates, Inc., (“Heller”). It alleged that the president of Pan American made the false survey referred to in Count I on pa…
-
Horowitz v. United Invs. Corp., 227 So. 2d 719 (Fla. 3d DCA 1969)…of a corporation in which he is a fifty per cent stockholder. We have recently had occasion to point out that where causes are brought in different rights they are separate causes of action. See General Dynamics Corporation v. Hewitt, Fla.App. 1969, 225 So. 2d 561. In addition as set forth in the last cited opinion the civil practice of the State of Florida forbids the joinder of causes which arise out of separate rights. See Rule 1.110(g), Florida Rules of Civil Procedure. Thus insofar as the courts of Flori…
-
Ginsberg v. Keehn, 550 So. 2d 1145 (Fla. 3d DCA 1989)…. 1st DCA 1988). The award of prejudgment interest on the attorney’s fee is stricken, and as modified, the final judgment is affirmed. . The joinder of direct and derivative claims may have been objectionable, see General Dynamics Corp. v. Hewitt, 225 So. 2d 561 (Fla. 3d DCA 1969), but that has no bearing on the analysis here. . In a derivative action the recovery flows to the corporation, not to the derivative plaintiff individually. No judgment or settlement should be structured so as to place the recove…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Ocala Loan Co. v. Smith, 155 So. 2d 711 (Fla. 1st DCA 1963)
- James Talcott, Inc. v. McDOWELL, 148 So. 2d 36 (Fla. 3d DCA 1962)
- Kenneth Smith for Weaver's Lakeland Steam Laundry v. Reuben Coleman, 100 Fla. 1707 (Fla. 1931)
- Williams v. Ricou, 143 Fla. 360 (Fla. 1940)
- Gen. Dynamics Corp. v. Hewitt, 207 So. 2d 44 (Fla. 3d DCA 1968)