LAWYERS TITLE INSURANCE CORP., APPELLANT,
v.
LITTLE RIVER BANK & TRUST COMPANY AND RACHEL MECHLOWITZ, APPELLEES
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A party waives the right to assert claims arising from the same transaction or occurrence as an opposing party's claim if they fail to file such claims as a compulsory counterclaim.
Lawyers Title filed a third-party complaint against Little River Bank & Trust Company, arising from the same transaction as a prior cross-claim. The B…
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Lawyers Title Insurance Corporation appeals from a summary final judgment rendered against it on the third party complaint it had filed against Little River Bank & Trust Company. The final judgment does not state the grounds upon which it was based. Able counsel for the parties have advanced persuasive reasons for af-firmance or reversal on several different grounds. We believe that one ground advanced by the Bank requires an affirmance, however, and this opinion will be limited to that ground.
In summary the record shows that an original plaintiff, Rachel Mechlowitz, sued Lawyers Title and the Bank as co-defendants. The Bank and Lawyers Title filed answers to the Mechlowitz complaint, and the Bank filed a cross-claim against its co-defendant, Lawyers Title. Lawyers Title filed an answer to the cross-claim.
The Bank and Lawyers Title later moved for summary final judgments on the Mechlowitz complaint. The motion of Lawyers Title for a summary judgment on the Mechlowitz complaint was denied and that cause is still pending. A summary final judgment was rendered for the defendant Bank on the claim of the plaintiff Mechlowitz. That summary final judgment was affirmed on appeal. See Mechlowitz v. Little River Bank and Trust Co., Fla.App.1967, 203 So.2d 66. Lawyers Title then moved for a summary judgment on the cross-claim filed against it by the Bank. The motion was granted and summary final judgment was rendered for Lawyers Title on the cross-claim. That final summary judgment was rendered on September 28, 1966, and no appeal was taken therefrom.
On April 4, 1968, the trial judge granted a motion of Lawyers Title under Rule 1.-180, Florida Rules of Civil Procedure, 30 F.S.A., to file a third party complaint against the Bank. On April 16, 1968, Lawyers Title filed its third party complaint against the Bank. The Bank filed its motion to dismiss and answer. Ultimately, the trial court rendered a summary judgment for the Bank on the third party complaint and that final summary judgment is before us by this appeal.
An examination of the third party complaint filed by Lawyers Title against the Bank reveals that it arose out of the same transaction or occurrence that was the subject matter of the original cross-claim filed by the Bank against Lawyers Title.
Rule 1.170(a), Florida Rules of Civil Procedure, provides in pertinent part:
“A pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, provided it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim and does not require for its adjudication the presence of third parties over whom the court cannot acquire jurisdiction. * * * ” (Emphasis added)
*414Rule 13(a), Federal Rules of Civil Procedure, is substantially the same as Florida Rule 1.170(a) except for portions thereof which are immaterial in this case.
In 3 Moore’s Federal Practice § 13.12, there is a discussion of the general scope of Federal Rule 13(a). On page 30 it states:
“and similarly, if defendant, X, pleads a cross-claim against his co-party, defendant Y, the latter must plead as a counterclaim any claim which he (Y) has against X that arises out of the transaction or occurrence which has made the basis of X’s cross-claim.”
In 2A Moore’s Federal Practice § 7.04, at 1539 it is reported:
“No reply is mandatory to an answer made to a cross-claim unless it contains a counterclaim denominated as such.4”
“4. See Rule 18(a), (g), which authorizes a counterclaim in such a situation as this: defendant A cross-claims against defendant B; B should plead any compulsory counterclaim that he has against A, and may plead independent claims against A.”
In the author’s comments to Rule 1.170, Florida Rules of Civil Procedure, 30 F.S.A. at 238, it is reported:
“ * * * If, however, the counterclaim arises out of the transaction or occurrence that forms the basis of the plaintiff’s claim, failure to assert it as a counterclaim constitutes a waiver of the right to recover on it.”
See Hightower v. Bigoney, Fla.1963, 156 So.2d 501, 17 A.L.R.3d 1308; Pesce v. Linaido, Fla.App.1960, 123 So.2d 747; and 20 Am.Jur.2d “Counterclaims, etc.” § 13.
We think that this rationale must be followed here. If Lawyers Title had a claim against the Bank which arose out of the transaction or occurrence which was the subject matter of the original cross-claim filed by the Bank against Lawyers Title it should have filed its counterclaim against the Bank asserting such rights at that time. It did not do so. Instead, Lawyers Title affirmatively moved for and recovered a summary final judgment on the cross-claim filed against it by the Bank. Approximately 19 months later it attempts to assert these alleged rights by means of a third party complaint against the Bank. By failing to file its compulsory counterclaim asserting such rights, it has waived or is estopped to assert such rights, if any existed, and it may not later attempt to assert them in a third party complaint filed against the Bank. Cf. Moore v. Deal, 203 F.Supp. 66 (E.D.Pa.1962) and London v. City of Philadelphia, 412 Pa. 496, 194 A.2d 901 (1963)
For these reasons the summary final judgment for the Bank is
Affirmed.
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Stone v. Pembroke Lakes Trailer Park, Inc., 268 So. 2d 400 (Fla. 4th DCA 1972)…suits, that plaintiff’s present suit needed only the failure of the defendant’s prior suit to establish a foundation for this suit. See Hightower v. Bigoney, 156 So. 2d 501 (Fla. 1963); Lawyers Title Ins. Corp. v. Little River Bank & Trust Company, 228 So. 2d 412 (Fla.App.1969); Pesce v. Linaido, 123 So. 2d 747 (Fla.App.1960). [*403] Accordingly, the judgment of the trial court is reversed and the cause remanded with instructions to dismiss plaintiff’s complaint with prejudice. Reversed and remanded, with i…
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Cheezem Dev. Corp. v. Maddox Roof Serv., Inc., 362 So. 2d 99 (Fla. 2d DCA 1978)…annot thereafter assert that claim in a separate action. Hightower v. Bigoney, 156 So. 2d 501 (Fla.1963); Stone v. Pembroke Lakes Trailer Park, Inc., 268 So. 2d 400 (Fla. 4th DCA 1972); Lawyers Title Insurance Corp. v. Little River Bank & Trust Co., 228 So. 2d 412 (Fla. 3d DCA 1969); 6 Wright & Miller, Federal Practice and Procedure § 1417 (1971). This interpretation of the rule is grounded on theories of either res judicata or of estoppel. Wright & Miller, supra. The question here is whether the same princip…
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Kellogg v. Fowler, 807 So. 2d 669 (Fla. 4th DCA 2001)…uired an unmatured claim to be filed as a compulsory counterclaim, then rule 1.170(e) would be unnecessary. A compulsory counterclaim is waived unless it is served in the answer. See, e.g., Lawyers Title Ins. Corp. v. Little River Bank & Trust Co., 228 So. 2d 412, 414 (Fla. 3d DCA 1969). It “would be bizarre to attach this sanction to a counterclaim that could not have been filed with the answer because it did not exist when the answer was due.” Harbor Ins. Co. v. Continental Bank Corp., 922 F. 2d 357, 360 (…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Hightower v. Bigoney, 156 So. 2d 501 (Fla. 1963)
- Coleen Pesce v. Eli Linaido and Ronny Molko, 123 So. 2d 747 (Fla. 3d DCA 1960)
- Williston Jackson and Tyrone Reid v. State, 203 So. 2d 66 (Fla. 3d DCA 1967)