# Lopez v. Peter R. Brown Co.

> District Court of Appeal of Florida · August 15, 1986 · 11 Fla. L. Weekly 1803

URL: https://www.frixlaw.com/law-library/cases/7551400

## Case

- **Full name:** Nelson LOPEZ v. PETER R. BROWN CO., INC.
- **Court:** District Court of Appeal of Florida
- **Decided:** August 15, 1986
- **Citations:** 11 Fla. L. Weekly 1803; 492 So. 2d 1174; 1986 Fla. App. LEXIS 9402
- **Precedential status:** Published
- **Opinion:** Opinion of the court by Campbell
- **Judges:** Campbell, Ryder, Schoonover
- **Cited by:** 2 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/7551400

## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7551400. Public record. Not legal advice.