Lopez v. Peter R. Brown Co.

492 So. 2d 1174, 11 Fla. L. Weekly 1803, 1986 Fla. App. LEXIS 9402

Opinion

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 dismissal 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.