where appellant filed crossclaim against codefen-dant in his initial answer, but crossclaim was not served before the original pleading was dismissed with prejudice by stipulation of the parties, holding that crossclaim did not survive voluntary dismissal; how *616 ever, separate action was not precluded if cause of action still existed
How later courts described this case
- where appellant filed crossclaim against codefen-dant in his initial answer, but crossclaim was not served before the original pleading was dismissed with prejudice by stipulation of the parties, holding that crossclaim did not survive voluntary dismissal; how *616 ever, separate action was not precluded if cause of action still existed
Written by the judges who cited it.
The 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 dismis *1175 sal 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.