MIRAMAR CONSTRUCTION, INC., APPELLANT,
v.
EL CONQUISTADOR CONDOMINIUM AND MR. AND MRS. WILLIAM DAY, ET AL., APPELLEES; ADDITIONS REMODELING, INC., APPELLANT, V. EL CONQUISTADOR CONDOMINIUM AND MR. AND MRS. WILLIAM DAY, ET AL., APPELLEES
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The court held that the procedure used to add defendants via third-party complaints was improper under Rule 1.180(a), RCP, and that the proper pleading of claims can substantially affect rights.
Condominium owners, sued by the developer for displaying 'for sale' signs, filed counterclaims alleging construction defects and attempted to add new …
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PEARSON, Judge.
These interlocutory appeals present the same issue, that is, whether the court erred in denying a motion to dismiss a third party complaint. Some fifty-odd owners of condominium parcels were made defendants by the developer in an action to restrain the display of “for sale” signs. In response to this action, the condominium owners filed a counterclaim alleging breaches of warranty in the construction of their condominium parcels. These counter-plaintiffs wish to add counter-defendants other than the developer and have sought to do this by bringing “third party complaints” against the additional defendants.
Such a procedure violates rule 1.180(a), RCP,1 in that the adding of additional de fendants does not constitute a third party claim. See Boling v. Barnes, Fla.App. 1967, 198 So. 2d 377.
These appeals are from orders denying the third party defendants’ motions to dismiss. Appellees suggest that the question is one of form only, but we hold that the proper pleading of the claimed right of action may substantially affect the appellants’ rights and, therefore, we reverse.
This decision shall be without prejudice to appellees’ right to any cause of action that they may have against the appellees.
Reversed and remanded.
. “(a) When. Defendant May Bring in Third Party. At any time after commencement of the action a defendant as a third party plaintiff may cause a summons and complaint to be served upon a person not a party to the action who is or may be liable to him for all or part of the plaintiff’s claim against him.”
Cases With Similar Vibessemantic neighbors from the corpus
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In re Amendments to Rules of Civil Procedure, 458 So. 2d 245 (Fla. 1984)…d to permit the defendant to have the same right to assert claims arising out of the transaction or occurrence that all of the other parties to the action have. It overrules the decisions in Miramar Construction, Inc. v. El Conquistador Condominium, 303 So. 2d 81, and Richard’s Paint Manufacturing Co. v. Onyx Paints, Inc., 363 So. 2d 596 to that extent. The term defendant is used throughout instead of third party plaintiff for clarity and brevity reasons and refers to the defendant serving the summons and th…
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Richard's Paint MFG. Co., Inc. v. Onyx Paints, Inc., 363 So. 2d 596 (Fla. 4th DCA 1978)…of the foregoing, we are of the view that any defendant who responds with a third-party complaint, is limited to a recovery of a sum of money not in excess of the plaintiff’s original claim. Miramar Construction, Inc. v. El Conquistador Condominium, 303 So. 2d 81 (Fla.3d DCA 1974). The wholesale paint dealer argues that recovery can be had in an amount greater than that asserted by the original plaintiff and cites, for example, Noland Company v. Graver Tank and Manufacturing Co., 301 F. 2d 43 (4th Cir. 1962…
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Landahl v. City OF Cape Coral & Gilvesy Constr., Inc., 502 So. 2d 16 (Fla. 2d DCA 1986)…plaintiff was limited to the recovery of some or all of the claim asserted against him by the plaintiff. Richard’s Paint Manufacturing Co. v. Onyx Paints, 363 So. 2d 596 (Fla. 4th DCA 1978); Miramar Construction, Inc. v. El Conquistador Condominium, 303 So. 2d 81 n. 1 (Fla. 3d DCA 1974); VTN Consolidated, Inc. v. Coastal Engineering Associates, 341 So. 2d 226 (Fla. 2d DCA), cert. denied, 345 So. 2d 428 (Fla.1977).1 Because Gilvesy had voluntarily dismissed its claim against Lan-dahl, the trial court should h…1 / 2
Authorities Cited
- Boling v. Barnes, 198 So. 2d 377 (Fla. 2d DCA 1967)