Miramar Construction, Inc. v. EL CONQUISTADOR CON.

303 So. 2d 81 | Fla. Dist. Ct. App. | 1974

303 So.2d 81 (1974)

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.

Nos. 74-790, 74-791.

District Court of Appeal of Florida, Third District.

November 19, 1974.

Lapidus & Hollander and Robert J. Schaffer, Miami, for appellants.

Becker & Poliakoff, Miami Beach, for appellees.

Before PEARSON, HAVERFIELD and NATHAN, JJ.

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 defendants 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.

NOTES

[1] 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."

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