NELSON LOPEZ, APPELLANT,
v.
PETER R. BROWN CO., INC., APPELLEE
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An unserved cross-claim by one defendant against a codefendant does not survive the stipulated voluntary dismissal with prejudice of the original cause of action and all other cross-claims and counterclaims.
A plaintiff sued two defendants, appellant and appellee. Appellee cross-claimed against appellant, and appellant cross-claimed against appellee. The o…
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CAMPBELL, Judge.
This appeal presents the question whether an unserved cross-claim by one defendant against a codefendant survives the stipulated voluntary dismissal with prejudice of the original cause of action and all other cross-claims and counterclaims. We hold it does not.
In this case, a cause of action was filed by the original plaintiff which named both appellant and appellee as defendants. Ap-pellee answered and cross-claimed against appellant. Appellant also answered and cross-claimed in the same pleading against appellee. The original plaintiff filed two amended complaints. Appellant answered each amended complaint but never refiled his cross-claim against appellee and never attempted service of the original cross-claim until all of the other causes of action had been dismissed with prejudice by stipulation of all the parties.
A cross-claim is dependent upon an original or primary action to support it. Fla.R.Civ.P. 1.170(g). Cross-claims against codefendants require service by summons unless that requirement is waived by subsequent conduct of the cross-defendant. Fundaro v. Canadiana Corp., 409 So. 2d 1099 (Fla. 4th DCA 1982). There was no such waiver in this case. The cross-claim, not having been served prior to the dismis sal of the supporting original proceeding and related claims, did not survive. This would not preclude, however, a separate action if the alleged cause of action of appellant against appellee otherwise continues to exist.
Affirmed.
RYDER, A.C.J., and SCHOONOVER, J., concur.
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84 Lumber Co. v. Cooper, 656 So. 2d 1297 (Fla. 2d DCA 1994)…on directed to the issue of reimbursement under the subrogation clause of 84 Lumber’s health plan, assuming such a cause of action still exists. See Cigna v. United Storage Sys., Inc., 537 So. 2d 129 (Fla. 5th DCA 1988); Lopez v. Peter R. Brown Co., 492 So. 2d 1174 (Fla. 2d DCA 1986).4 We pause to wonder what each party’s jurisdictional position would have been had the trial court awarded 84 Lumber the full amount of its claim and Cooper had appealed? Notwithstanding our curiosity, we observe that the trial c…
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Liberty Ins. Corp. v. Milne, 98 So. 3d 613 (Fla. 4th DCA 2012)…underlying action that already had been concluded; any attempt to file a crossclaim or a third-party complaint or to serve process on Liberty was a nullity after the denial of the last motion for new trial. See generally Lopez v. Peter R. Brown Co., 492 So. 2d 1174, 1175 (Fla. 2d DCA 1986) (where appellant filed crossclaim against codefen-dant in his initial answer, but crossclaim was not served before the original pleading was dismissed with prejudice by stipulation of the parties, holding that crossclaim did…
Authorities Cited
- Cirigliano v. Singer, 409 So. 2d 1099 (Fla. 3d DCA 1982)
- Fundaro v. Canadiana Corp., 409 So. 2d 1099 (Fla. 4th DCA 1982)