03-2852 KENDALL V. GILMORE

SUPREME COURT CASES

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State: Florida

Court: Florida Third District Court

Docket No: 03-2852 KENDALL V. GILMORE

Case Date: 11/02/2005

Preview:NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF. IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JULY TERM, A.D. 2005 HAROLD E. KENDALL, SR., et al., Appellants, vs. MARTHA K. GILMORE, et al., Appellees. ** ** ** ** ** ** Opinion filed November 2, 2005. An Appeal from the Circuit Court for Miami-Dade County, Arthur L. Rothenberg, Judge. Alayon & Associates, P.A., and Richard Lourdes Sanchez-Barcia, for appellants. A. Alayon, and LOWER TRIBUNAL NO. 03-1585 CASE NO. 3D03-2852

Silver, Garvett & Henkel, P.A., and Raymond L. Robin, and Timothy D. Henkel, for appellees. Before LEVY, GREEN and WELLS, JJ. PER CURIAM.

Harold dismissing prejudice.

E. their

and

Elizabeth Party

H.

Kendall

appeal

an

order with

Third

First

Amended

Complaint

We affirm the order insofar as it dismisses the

complaint; we reverse the portion of the order dismissing with prejudice. The appellants' son, Harold E. Kendall Jr., filed a

complaint against his father, his brother, Peter H. J. Kendall, and Maryanne Ballard, the independent trustee, alleging

improprieties with the Lizzarraga Trust, which was created by the father for the use and benefit of the mother. The complaint

alleged, inter alia, fraudulent transfers, breach of fiduciary duty, and civil conspiracy. The complaint was amended to

include the mother after the trust assets were transferred to her. The appellants filed third party claims four years later

against the appellees herein, Martha K. Gilmore and Susan K. Bradford, their daughters, another son, and John G. Immer. The

third party claims sought a judicial declaration as to the trust assets transferred to the mother, and sought a constructive

trust over the property in two other trusts.

No contribution,

indemnification or subrogation claims were raised; the appellees moved to dismiss the complaint for failure to raise such claims or for a more definite statement. party complaint. The court dismissed the third

2

Thereafter,

the

appellees

filed

an

Amended

Third

Party

Complaint that added a request for an injunction, and a claim to quiet title to property held by the trusts; no contribution, indemnification or subrogation claims were alleged. party defendants filed a motion to dismiss with The thirdprejudice.

After a hearing, the court granted the motion and dismissed the complaint with prejudice. The trial court This appeal follows. properly dismissed the appellants'

complaint because it did not state a claim "that arises out of the transaction or occurrence that is the subject matter of the plaintiff's claim." Fla. R. Civ. P. 1.180(1). In this case,

the appellants' amended complaint could not maintain a valid claim for contribution, indemnification or subrogation. Philpot, 619 So. 2d 1047 (Fla. 5th DCA 1993); Rupp v. v.

Tindall

Travelers Indem. Co., 613 So. 2d 1369 (Fla. 2d DCA 1993); Matey v. Reinman, 599 So. 2d 201 (Fla. 2d DCA 1992); Leggiere v. Merrill Lynch Realty/Florida, Inc., 544 So. 2d 240 (Fla. 2d DCA 1989). 2002). See Boyd v. Halstead, 817 So. 2d 1092 (Fla. 2d DCA The facts in the Third Party Complaint and the Third

Party First Amended Complaint demonstrate that further amendment would not be fruitful. We reverse, however, the portion of the order that

dismisses the claims with prejudice. Third Party First Amended

The claims asserted in the may be asserted in a

Complaint

3

separate action against the appellees, should appellants choose to do so. 1993). Affirmed in part, reversed in part. Dacryn Corp. v. Peacock, 630 So. 2d 1169 (Fla. 2d DCA

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