Neil v. South Florida Auto Painters, Inc., 79-2039

• Decision Date: 28 April 1981
• Docket Number: No. 79-2039,79-2039
• Citation: 397 So.2d 1160
• Parties: Maye G. NEIL, Appellant, v. SOUTH FLORIDA AUTO PAINTERS, INC., a Florida Corporation, d/b/a Auto Painting Corporation of America, Appellee.
• Court: Florida District Court of Appeals

Page 1160

397 So.2d 1160

Maye G. NEIL, Appellant, v. SOUTH FLORIDA AUTO PAINTERS, INC., a Florida Corporation, d/b/a Auto Painting Corporation of America, Appellee.

No. 79-2039.

District Court of Appeal of Florida, Third District.

April 28, 1981.

Rehearing Denied May 20, 1981.

Carl H. Hoffman and David Hertzig, Miami, for appellant.

Preddy, Kutner & Hardy and Stephen T. Brown, Miami, for appellee.

Before HUBBART, C. J., and BARKDULL and DANIEL S. PEARSON, JJ.

DANIEL S. PEARSON, Judge.

The issue presented for our review is whether certain causes of action brought in an independent suit by Neil against South Florida Auto Painters, Inc., doing business as Auto Painting Corporation of America (APCA), were of such a nature as to constitute compulsory claims which Neil was required to assert as counterclaims (or be thereafter barred from asserting) in either of two prior actions brought against her by APCA. The trial court determined that four counts of Neil's complaint alleging that APCA was liable in damages to her on account of assault and battery, false imprisonment, intentional infliction of emotional distress, and malicious prosecution ¹ arose out of "the transaction or occurrence that (was) the subject matter" of APCA's prior claims, were therefore compulsory counterclaims, and were now barred. See Fla.R.Civ.P. 1.170(a). Accordingly, the trial court dismissed these counts of Neil's complaint. ² We reverse the dismissal of the count charging malicious prosecution and otherwise affirm the ruling of the trial court.

I.

The Transaction Or Occurrence.

In early May 1975, APCA agreed to paint Neil's car in consideration of Neil paying $109.15. The paint job was completed in several days, and Neil came to APCA's garage for her car. The paint job was not to Neil's liking, and she told APCA's employee, whom she thought to be the manager, that she would not pay for it. An ensuing heated discussion ended with Neil getting in her car. At that point, the employee reached in the car window and removed the key from the ignition. Neil took a duplicate key from her purse and started the car. The employee closed the front garage door to prevent Neil's departure. Neil turned her car around in an effort to exit from the open rear door. During the process, Neil's car struck and caused minor damage to two cars parked in the garage. APCA's employee shut the rear door. Angry words were again exchanged. The argument was interrupted by a knock on the front garage door. The employee answered the knock, opened the door, and went outside the garage. Neil turned her car around again and proceeded to drive out the front door. The employee stopped her by placing himself in front of Neil's car. When Neil revved the engine, the employee stepped aside. As Neil drove past him, the employee opened the driver's side of Neil's car, causing it to hit against the side of the garage. Neil finally drove away.

II.

APCA's Claim For Replevin.

Less than a month after Neil's hurried departure, APCA filed an action for replevin, seeking possession of the automobile which was, allegedly, wrongfully removed from its premises. Although the record of these replevin proceedings is sparse, we are able to glean from it two significant facts. First, it appears that APCA's replevin action was dismissed by the trial court on the ground that "the remedy at law under which plaintiff has chosen to sue is inappropriate under the circumstances." Second, it appears that APCA did not seek a personal judgment against Neil, but restricted its prayer for relief to a claim for possession of the car.

The significance, for present purposes, of the trial court's dismissal on the ground that the remedy of replevin was inappropriate is that such a dismissal, whether correctly entered or not, relieved Neil of the obligation, if any otherwise existed, to file a counterclaim to APCA's replevin action. As the court stated in Lawhorn v. Atlantic Refining Company, 299 F.2d 353, 356 (5th Cir. 1962):

"... it is clear that a plaintiff must have a claim before a defendant is required to assert a compulsory counterclaim. A counterclaim must be pressed only when it is related to the ... subject matter of the opposing party's claim .... When Atlantic's motion to dismiss was successful, it was a judicial determination that Lawhorn had no claim upon which relief could be granted. If there was no claim, no counterclaim was required." (emphasis in original).

Similarly, the trial court's dismissal of APCA's replevin action was a judicial determination that APCA had no claim upon which relief could be granted, and Neil was not compelled to file any counterclaim in response.

Alternatively, APCA's failure to seek a personal judgment against Neil in the replevin action made a counterclaim by Neil unnecessary. This exception to the compulsory counterclaim requirement is found in Florida Rule of Civil Procedure 1.170(a)(2):

"... the pleader need not state a claim if ... the opposing party brought suit upon his claim by attachment or other process by which the court did not acquire jurisdiction to render a personal judgment on the claim...."

In its replevin action, APCA invoked only the in rem jurisdiction of the trial court, rendering a counterclaim by Neil unnecessary. ³ Cf. Baker v. Gold Seal Liquors, Inc., 417 U.S. 467, n.1, 94 S.Ct. 2504, n.1, 41 L.Ed.2d 243, n. 1 (1974) (in dictum, court stated that where only in rem jurisdiction is invoked, a counterclaim is not required under Federal Rule of Civil Procedure 13(a)). ⁴

III.

APCA's Claim For Breach Of Contract And Damages Arising From Neil's Negligence.

A. The effect upon Neil's actions for assault and battery, false imprisonment, and intentional infliction of emotional distress.

Approximately two months after its replevin action was dismissed APCA sued Neil to recover the $109.15 which she agreed to pay for the paint job and for $55.00 in damages to the automobiles which were hit in APCA's garage during Neil's exit. Neil filed no counterclaim to this action. ⁵ The case went to trial, and judgment was entered in Neil's favor. Sometime later, Neil brought the suit which is the subject of this appeal.

Neil and APCA are in accord that the appropriate test for determining whether a counterclaim arises out of the transaction or occurrence which is the subject matter of the opposing party's claim, and is thus compulsory, is the "logical relationship" test. ⁶ The test, in modern form, is set forth in Revere Copper and Brass, Inc. v. Aetna Casualty and Surety Co., 426 F.2d 709, 715 (5th Cir. 1970):

"... a claim has a logical relationship to the original claim if it arises out of the same aggregate of operative facts as the original claim in two senses: (1) that the same aggregate of operative facts serves as the basis of both claims; or (2) that the aggregate core of facts upon which the original claim rests activates additional legal rights in a party defendant that would otherwise remain dormant." (emphasis in original).

We agree that the test is an appropriate one, but as so readily appears from the decisional law and from the conflicting contentions of the parties here, stating the test is far easier than determining whether claims are or are not logically related. ⁷

In making this determination, we must keep in mind that the goal of the compulsory counterclaim rule is "to prevent multiplicity of actions and to achieve a just resolution in a single lawsuit of all disputes arising out of common matters." Stone v. Pembroke Lakes Trailer Park, Inc., 268 So.2d 400 (Fla. 4th DCA 1972); 3 Moore's Federal Practice P 13.12(1), at 13-273 (2d ed. 1980). Therefore, to achieve this goal, we must give the phrase "transaction or occurrence" a broad, realistic interpretation. Stone v. Pembroke Lakes Trailer Park, Inc., supra.

We find persuasive the Fifth Circuit's decision in United Broadcasting Company, Inc. v. Armes, 506 F.2d 766 (5th Cir. 1975). In that case, Eaton, the equitable owner of a Mexican radio station, hired Armes, a private investigator, to assist in recovering legal title to the station and physical custody of his ward. ⁸ Armes experienced difficulties in collecting the promised investigative fees and allegedly engaged in the questionable collection methods of threatening to harm Eaton and the child. Ultimately, Armes filed a suit in a Texas Federal District Court to recover his fees. During the progress of that suit, Eaton filed suit against Armes in the District of Columbia Federal District Court for invasion of privacy and other torts. The Texas Federal Court enjoined the District of Columbia action. Eaton appealed. The Fifth Circuit, inter alia, affirmed the injunction, holding that Eaton's tort claims in the District of Columbia action arose out of the same transaction as Armes' contract claims and could only be brought as a counterclaim in the Texas Federal Court.

In contrast, but equally instructive, is Bohlender v. Oster, 165 Colo. 164, 439 P.2d 999 (1968), in which the court held that while Bohlender's counterclaim of assault and battery to Oster's like complaint arising out of a 1963 affray was clearly compulsory, Bohlender's additional counterclaims to enjoin Oster from interfering with irrigation and water rights which admittedly were based on unrelated events which occurred well prior to their fight were not compulsory counterclaims. ⁹

In the present case, the acts of APCA's employee in preventing Neil from leaving the garage without paying for the paint job, out of which Neil's false imprisonment, assault and battery, and intentional infliction of emotional distress claims arose, and Neil's efforts to extricate herself from her captor, out of which APCA's claim for damage to other vehicles arose, are inextricably bound together. Thus, APCA's claim for the cost of the paint job and claim that Neil negligently damaged its vehicles arises out of the same aggregate of operative facts as Neil's claim that in pursuit...