Pesce v. Linaido, 59-471

• Decision Date: 31 October 1960
• Docket Number: No. 59-471,59-471
• Citation: 123 So.2d 747
• Parties: Coleen PESCE, Appellant, v. Eli LINAIDO and Ronny Molko, Appellees.
• Court: Florida District Court of Appeals

Page 747

123 So.2d 747

Coleen PESCE, Appellant, v. Eli LINAIDO and Ronny Molko, Appellees.

No. 59-471.

District Court of Appeal of Florida, Third District.

Oct. 31, 1960.

Rehearing Denied Nov. 18, 1960.

Dermer & Rosen and Alan H. Rothstein, Miami Beach, for appellant.

Carey, Goodman, Terry, Dwyer & Austin, Miami, and Clifford B. Selwood, Jr., Fort Lauderdale, for appellees.

HORTON, Chief Judge.

Appellant, plaintiff below, appeals from a summary final judgment in favor of the defendants. This action arose out of an automobile accident. The plaintiff charged defendant Molko, the driver of an automobile owned by the defendant Linaido, with negligence which was alleged to be the proximate cause of certain injuries sustained by her. Defendants in their answer, and by way of affirmative defense, alleged 'that as a result of the injuries sustained in the accident complained of, the defendant, Ronny Molko, through his father and next friend, Joseph R. Molko, instituted a suit against the plaintiff, Coleen Pesce, and filed the same in the Civil Court of Record in and for Dade County, Florida, bearing case No. 58-5906; that in said suit Coleen Pesce was accused of negligence and of causing the injuries sustained by Ronny Molko. The defendants would further show the though the plaintiff, Coleen Pesce, was represented by counsel and filed an answer in the cause, that she did not file a counterclaim in this action as required by Rule 1.13(1) of the Florida Rules of Civil Procedure, 30 F.S.A., which made it compulsory for a defendant, at the time of filing her answer, to set forth as a counterclaim any claim arising out of the transaction or occurrence that is the subject matter of the action * * *.' The defendants further alleged that as a result of said suit, judgment was entered in favor of defendant Molko which was fully paid and a satisfaction of judgment was executed, filed and recorded. In addition to the defenses directed to the plaintiff's failure to assert a compulsory counterclaim, the defendants relied upon defenses of estoppel by judgment and res judicata.

Upon deposition, the plaintiff admitted that she was aware of defendant Molko's claim and further indicated that it was being processed by her insurance carrier. Relying upon this deposition, the pleadings and the original record of the civil court of record case No. 58-5906, the defendants moved for summary judgment. The trial court indicated that in addition, it had considered the findings of fact and final judgment dated October 3, 1958, in case No. 58-5906, and the order correcting findings of fact and final judgment dated April 29, 1959, entered in said cause, and upon hearing argument and admissions of counsel, granted defendants' motion.

The appellant's arguments on appeal are based primarily upon the recitation in the order correcting findings of fact in final judgment wherein the judge of the civil court of record indicated that he understood the proceedings before him in case No. 58-5906 was merely in the nature of a 'friendly suit' to secure court approval of a settlement for the minor, Ronny Molko, with appellant's insurance carrier and was not an adversary proceedings intended to adjudicate all issues involved. We conclude that Rule 1.13(1) governs and supports the holding of the trial court.

Appellant has not contended or shown that the attorneys was appeared in her behalf and filed an answer in the civil court of record were not authorized to appear in her behalf. We must conclude that although the civil court of record suit may have been a 'friendly suit' it was such an action as is contemplated in Rule 1.13(1) Florida Rules of Civil Procedure, which provides:

'The defendant, at the time of the filing of his answer, shall state as a counterclaim, any claim, whether the subject of a pending action or not, which he has against the plaintiff, arising out of the transaction or occurrence that is the subject matter of the action and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction.'

This rule on compulsory counterclaim, although derived from our statutes and earlier rules, ¹ is similar in many respects to Federal Rule 13(a), 28 U.S.C.A. Rule 13(a) is 'mandatory' and if the defendant does not plead any counterclaim which he has, all right of action thereon is foreclosed. 1A Barron & Holtzoff, Federal Practice & Procedure § 394.

Our Supreme Court, in applying the 'compulsory counterclaim rule' in Newton v. Mitchell, Fla.1949, 42 So.2d 53, 55, said:

'In arriving at this conclusion we are not uninfluenced by the knowledge of the vast amount of litigation now appearing in the courts growing out of the collisions of motor vehicles and the great importance of determining such controversies as speedily, economically, and accurately as possible. The circuit judge's decision that Newton should not be allowed to present his claim independently harmonizes with our view that application of the statute in such fashion will ultimately benefit litigant and court.'

We are not here concerned with the absolute bar which arises under the doctrine of res judicata or estoppel by judgment from a judgment entered as a result of actual litigation of the issues raised. We are instead confronted with a bar created by Rule 1.13(1) Florida Rules of Civil Procedure. It has been generally held under Federal Rule 13(a) or similar state rules or statutes that a failure to so assert a compulsory counterclaim precludes assertion thereof in a subsequent action. Annotation 22 A.L.R.2d 621. This penalty has been applied for failure to assert a compulsory counterclaim where the first action has resulted in a consent or default judgment not tried upon its merits, but the action must necessarily have proceeded to a judgment. Schott v. Colonial Baking Company, D.C.Ark.1953 111 F.Supp. 13; Shrieves v. Yarbrough, 220 Ark. 256, 247 S.W.2d 193; Mensing v. Sturgeon, 1959, 250 Iowa 918, 97 N.W.2d 145; Keller v. Keklikian, 362 Mo. 919, 244 S.W.2d 100; Horne v. Woolever, 170 Ohio St. 178, 163...