Wilson Sr. v. Kade

District Court of Appeal of Florida

Wilson Sr. v. Kade

215 So. 3d 632, 2017 WL 1278046, 2017 Fla. App. LEXIS 4650

CourtDistrict Court of Appeal of Florida

DecidedApril 5, 2017

Docket16-0937

StatusPublished

This text of 215 So. 3d 632 (Wilson Sr. v. Kade) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Wilson Sr. v. Kade, 215 So. 3d 632, 2017 WL 1278046, 2017 Fla. App. LEXIS 4650 (Fla. Ct. App. 2017).

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Opinion

PER CURIAM.

Upon our de novo review, Jackson v. Shakespeare Foundation, Inc., 108 So.3d 587 (Fla. 2013), we affirm the trial court’s order dismissing with prejudice Darrell Keith Wilson, Sr.’s fourth amended third-party complaint against appellee Paul Kade. The trial court concluded, and we agree, that each of the claims asserted therein—even assuming that they stated a cause of action—constituted compulsory counterclaims to a prior action brought by Kade against Wilson. 1 See Fla. R. Civ. P. 1.170(a) (providing: “A pleading must state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, provided it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim and does not require for its adjudication the presence of third parties over whom the court cannot acquire jurisdiction”); B & V Ltd, v. All Dade Gen. Constr., Inc., 662 So.2d 413, 415 (Fla. 3d DCA 1995) (holding that under the logical relationship test, a compulsory counterclaim exists “when the same aggregate of operative facts serves as the basis of both claims.” (quoting Neil v. South Fla. Auto Painters, Inc., 397 So.2d 1160, 1164 (Fla. 3d DCA 1981))). In addition, we agree with the trial court that Kade’s prior action against Wilson had already proceeded to final judgment in 2007 and that Wilson’s failure to plead the compulsory counterclaims in that prior action resulted in a waiver of those claims. See Londono v. Turkey Creek, Inc., 609 So.2d 14, 19 (Fla. 1992) (holding that the failure to raise a compulsory counterclaim in the first suit will result in a waiver of that claim); Bracha Holding, Inc. v. U.S. Small Bus. Admin., 800 So.2d 657 (Fla. 3d DCA 2001).

Affirmed.

1

. The trial court also concluded that none of Wilson’s purported claims set forth a viable cause of action, and that any further attempt to amend the pleading would have been futile. See Grove Isle Ass'n v. Grove Isle Assocs,, LLP, 137 So.3d 1081 (Fla. 3d DCA 2014). Wilson had five opportunities to plead a legally sufficient cause of action, and we find the trial court did not abuse its discretion in denying further leave to do so. Coral Gables Distrib., Inc. v. Milich, 992 So.2d 302, 303 (Fla. 3d DCA 2008) (observing that “as an action progresses, the privilege of amendment progressively decreases to the point that the trial judge does not abuse his discretion in dismissing with prejudice”) (quoting Kohn v. City of Miami Beach, 611 So.2d 538, 539 (Fla. 3d DCA 1992)).

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PER CURIAM.

Upon our de novo review, Jackson v. Shakespeare Foundation, Inc., 108 So.3d 587 (Fla. 2013), we affirm the trial court’s order dismissing with prejudice Darrell Keith Wilson, Sr.’s fourth amended third-party complaint against appellee Paul Kade. The trial court concluded, and we agree, that each of the claims asserted therein—even assuming that they stated a cause of action—constituted compulsory counterclaims to a prior action brought by Kade against Wilson. 1 See Fla. R. Civ. P. 1.170(a) (providing: “A pleading must state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, provided it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim and does not require for its adjudication the presence of third parties over whom the court cannot acquire jurisdiction”); B & V Ltd, v. All Dade Gen. Constr., Inc., 662 So.2d 413, 415 (Fla. 3d DCA 1995) (holding that under the logical relationship test, a compulsory counterclaim exists “when the same aggregate of operative facts serves as the basis of both claims.” (quoting Neil v. South Fla. Auto Painters, Inc., 397 So.2d 1160, 1164 (Fla. 3d DCA 1981))). In addition, we agree with the trial court that Kade’s prior action against Wilson had already proceeded to final judgment in 2007 and that Wilson’s failure to plead the compulsory counterclaims in that prior action resulted in a waiver of those claims. See Londono v. Turkey Creek, Inc., 609 So.2d 14, 19 (Fla. 1992) (holding that the failure to raise a compulsory counterclaim in the first suit will result in a waiver of that claim); Bracha Holding, Inc. v. U.S. Small Bus. Admin., 800 So.2d 657 (Fla. 3d DCA 2001).

Affirmed.

1

. The trial court also concluded that none of Wilson’s purported claims set forth a viable cause of action, and that any further attempt to amend the pleading would have been futile. See Grove Isle Ass'n v. Grove Isle Assocs,, LLP, 137 So.3d 1081 (Fla. 3d DCA 2014). Wilson had five opportunities to plead a legally sufficient cause of action, and we find the trial court did not abuse its discretion in denying further leave to do so. Coral Gables Distrib., Inc. v. Milich, 992 So.2d 302, 303 (Fla. 3d DCA 2008) (observing that “as an action progresses, the privilege of amendment progressively decreases to the point that the trial judge does not abuse his discretion in dismissing with prejudice”) (quoting Kohn v. City of Miami Beach, 611 So.2d 538, 539 (Fla. 3d DCA 1992)).

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Bluebook (online)

215 So. 3d 632, 2017 WL 1278046, 2017 Fla. App. LEXIS 4650, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wilson-sr-v-kade-fladistctapp-2017.

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