MCDONALD AIR CONDITIONING, APPELLANT,
v.
1041 CORPORATION, INC., APPELLEE
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McDonald Air Conditioning seeks reversal of a $11,000 jury verdict in a negligence action brought by 1041 Corporation for water damage from defective air conditioning equipment. The appellate court reversed because the damage claim was a compulsory counterclaim that should have been asserted in an earlier related lawsuit between the parties.
The court held that the current negligence action is a compulsory counterclaim that should have been asserted in the prior litigation. Because appellee failed to raise it then, it cannot now be pursued in a separate action, and the judgment for appellee must be reversed.
[1] A claim arising out of the same transaction or occurrence as a prior lawsuit, and not requiring the presence of third parties over whom the court could not acquire jurisd…
[2] A party who fails to assert a compulsory counterclaim in a prior action is barred from bringing a subsequent action on that claim.
Previewing 2 of 3 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“the basis for recovery below, being known to appellee when the preceding dispute was aired, was a compulsory counterclaim that should have been asserted in the prior litigation”
Establishes the core legal principle that the current claim should have been raised as a counterclaim in the earlier lawsuit
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Join FLexlaw to unlock all legal intelligenceAppellant McDonald Air Conditioning installed air conditioning equipment in appellee's apartment building. The equipment was defective and caused wate…
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Appellant seeks reversal of a final judgment of the trial court granting appellee-plaintiff a jury verdict of $11,000. This suit is a negligence action to recover for damage caused by water leaks from air conditioning equipment that appellant installed in appellee’s apartment building. The former instituted suit against the latter prior to the instant litigation and recovered in excess of $22,000 for labor and materials supplied during the installation of the defective air conditioning system. The damages and defects which form the basis for recovery in the case at bar were incurred and known to appellee before the bringing of the antecedent action.
The first complaint resulted in the entry of a decree pro confesso in favor of appellant; a subsequent amended final judgment of foreclosure was rendered, but judicial sale of the apartment building was averted by payment of the aforesaid $22,000.
Appellant urges that this posture of the litigation below requires a determination that its motion for directed verdict should have been granted. We agree and reverse.
The gist of the applicable law is that the basis for recovery below, being known to appellee when the preceding dispute was aired, was a compulsory counterclaim that should have been asserted in the prior litigation. The record on appeal demonstrates that this basis of recovery arose out of the same transaction or occurrence that was the subject matter of the preceding cause of action, and did not require for its adjudication the presence of third parties of whom the court could not have acquired jurisdiction. In addition, the previous lawsuit proceeded to a judgment. Thus, the action in the lower court must be identified as a compulsory counterclaim in the anterior case. See Rule 1.170, Florida Rules of Civil Procedure, 30 F.S.A., and Pesce v. Linaido, 123 So.2d 747 (Fla.App.3d 1960) [a much-cited Florida decision dealing with compulsory counterclaims].
Having disregarded the sole opportunity to present a compulsory counterclaim, ap-pellee now has no legal avenue of recovery that permits the affirmance of the judg*321ment appealed. We accordingly reverse the final judgment and remand this cause for further proceedings not inconsistent with the views expressed herein.
Reversed and remanded.
WIGGINTON and JOHNSON, JJ., concur.
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Berryer v. HERTZ, 522 So. 2d 510 (Fla. 3d DCA 1988)…ns, Inc., 422 So. 2d 1085 (Fla. 3d DCA 1982); Quick and Reilly, Inc. v. Perlin, 411 So. 2d 978 (Fla. 3d DCA 1982); Brickell Bay Condominium Association, Inc. v. Forte, 397 So. 2d 959 (Fla. 3d DCA 1981); McDonald Air Conditioning v. 1041 Corporation, 251 So. 2d 319 (Fla. 1st DCA 1971). We modify the judgment, however, so that the fees for defense of the malpractice action are awarded directly to the defendant. Affirmed as modified. . General Retainer Agreement states in part as follows: ”f) In the eve…
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DuBREUIL v. James, 365 So. 2d 184 (Fla. 3d DCA 1978)…icable statute of limitations. Inasmuch as it affirmatively appears from the pleadings that the attempted counterclaim is permissive and not compulsory, see Barrett v. Pickard, 85 So. 2d 630 (Fla.1956); McDonald Air Conditioning v. 1041 Corporation, 251 So. 2d 319 (Fla. 1st DCA 1971); and Florida Rules of Civil Procedure 1.170(b), and that the time specified by the statute of limitations, Section 95.11, Florida Statutes (1973), had run, the judgment is affirmed. Affirmed.…
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Cleckner v. Republic VAN & Storage Co., Inc., 556 F.2d 766 (5th Cir. 1977)…llate court held th¿¿ a negligence action to recover for damage caused by water leaks in certain air conditioning equipment was barred for failure to assert it as a compulsory counterclaim in the earlier suit to recover on the installation contract. 251 So. 2d 319 (Fla.App.1971). Relying on Pesce v. Linaido and McDonald Air Conditioning as the applicable Florida law, we affirm the district court’s holding that John Cleckner may not sue Republic in a diversity action. Proceeding to the second level of analysi…
Authorities Cited
- Coleen Pesce v. Eli Linaido and Ronny Molko, 123 So. 2d 747 (Fla. 3d DCA 1960)