RICHARD'S PAINT MFG. CO., INC., APPELLANT,
v.
ONYX PAINTS, INC., A FLORIDA CORPORATION, AND TRI-COUNTY PAINTING, INC., A FLORIDA CORPORATION, APPELLEES
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A wholesale paint dealer sued a customer for an unpaid account of $2,458, then filed a third-party complaint against the paint manufacturer seeking recovery for all paint ever purchased (totaling over $10,000) after the customer countersued for breach of warranty. The court held that third-party complaints are limited to recovery not exceeding the original plaintiff's claim.
A third-party plaintiff is limited to recovery not exceeding the original plaintiff's claim. The third-party complaint in this case could not exceed the customer's counterclaim of $4,000, and the judgment must be reduced accordingly.
[1] A third-party plaintiff's recovery is limited to the amount of the original plaintiff's claim against the defendant.
[2] A third-party complaint must seek recovery for all or part of the plaintiff's claim against the defendant, not for unrelated claims.
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Join FLexlaw to unlock all legal intelligence“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.”
The controlling statutory language from Florida Rule 1.180(a) that limits third-party recovery to the amount of the original claim
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Join FLexlaw to unlock all legal intelligenceRichard's Paint, a wholesale paint dealer, sued Onyx Paints for an account stated of $2,458 for paint supplied. Onyx Paints countersued for breach of …
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LETTS, Judge.
This appeal comes to us by way of a third-party complaint resulting in an award to the third-party plaintiff of a sum far in excess of that sought in the original complaint. We reverse in part and remand.
Originally, a wholesale paint dealer sued a customer for an account stated in the sum of $2,458, said account incurred by reason of paint supplied to the customer. Thereafter the customer filed a counterclaim for breach of expressed and implied warranties resulting in actual damages which it incurred in the sum of $4,000 by reason of the supplied paint being unfit for use. Upon receiving the counterclaim, the wholesale paint dealer filed a third-party complaint against the manufacturer for all of said paint supplied to the customer and in addition for all the paint that it had ever bought, including paint which had nothing whatever to do with the subject of the original complaint. The grand total of all paint purchased was in excess of $10,000 all of which sum was awarded to the third-party plaintiff in the final judgment.
Florida Rules of Civil Procedure, Rule 1.180 provides:
(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. . . . (emphasis supplied)
From a reading 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). The wholesale paint dealer further points out that the Florida rule is patterned after the Federal rule cited in this Noland case. However, we note that the Federal rules have been amended since that case, to also provide that “a party asserting a claim to relief as an original claim, counterclaim, cross-claim, or third-party claim, may join, either as independent or as alternate claims, as many claims, legal, equitable, or maritime, as he has against an opposing party.”1 Florida has no counterpart to this amended provision in Rule 18 and we feel (as apparently the Federal Courts did) that its presence is necessary to support a greater award than the original amount sued on. Accordingly, we conclude that the rule means exactly what it says and no more. The final judgment is affirmed in all other respects, but this cause is remanded to the trial court so that the judgment in favor of the wholesale paint company and against the manufacturer can be reduced to $4,000.
In all other respects, not in conflict herewith, the final judgment is affirmed.
REVERSED IN PART AND REMANDED.
CROSS and MOORE, JJ., concur. . Fed.R.Civ.P. 18(a).
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In re Amendments to Rules of Civil Procedure, 458 So. 2d 245 (Fla. 1984)…ut 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 third party complaint on a third party defendant or, when applicable, to the s…
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Landahl v. City OF Cape Coral & Gilvesy Constr., Inc., 502 So. 2d 16 (Fla. 2d DCA 1986)…l or part of the plaintiff’s claim against him. Under the rule as it then read, a third-party 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…1 / 2
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Richard's Paint MFG. v. Onyx Paints, Inc., 394 So. 2d 1064 (Fla. 4th DCA 1981)…tention to the writ of garnishment to which the paint dealer likewise filed no response. REVERSED AND REMANDED FOR THE ENTRY OF A JUDGMENT IN ACCORDANCE HEREWITH. DOWNEY and HURLEY, JJ., concur. . See Richards Paint Mfg. Co. v. Onyx Paints, Inc., 363 So. 2d 596 (Fla.4th DCA 1978). . All cash totals stated in this opinion are rounded off and simplified for the sole purpose of rendering it intelligible. We are aware for instance that the $4,000 judgment entered by the trial court was in the end result actua…
Authorities Cited
- Noland Co. v. Graver Tank & Mfg. Co., 301 F.2d 43 (4th Cir. 1962)
- Miramar Constr., Inc. v. EL Conquistador Condo. & Mr. & Mrs. William Day, 303 So. 2d 81 (Fla. 3d DCA 1974)