Summary
In Florida Gas Co. v. Arkla Air Conditioning Co., 260 So.2d 220 (Fla. 1st DCA 1972), an appeal from a final order dismissing a third amended third-party complaint, we held that under even the most liberal construction of the rules of procedure, ample opportunity was proffered to the appellant to state a cause of action.
Summary of this case from McKinney-Green, Inc. v. DavisOpinion
No. O-87.
March 30, 1972. Rehearing Denied April 25, 1972.
Appeal from the Duval County Circuit Court, Frank H. Elmore, J.
Raymond Ehrlich, of Mathews, Osborne Ehrlich, Jacksonville, for appellant.
Thomas M. Baumer, of Mahoney, Hadlow, Chambers Adams, Jacksonville, for appellee.
Appellant, Florida Gas Company, appeals from a final order dismissing its third amended third party complaint upon the grounds that same failed to state a cause of action.
Lockwood Marks, Inc. instituted this action against Florida Gas, alleging breach of contract in the design and installation of an air conditioning system in an apartment complex. Particular allegations by Lockwood are: the system continuously broke down; improper design; expansion couplings not installed; faulty thermostat; chiller units defective; and breaks in hose connections. An additional count alleging negligence on the part of Florida Gas is set out in the complaint.
Florida Gas sought to join Arkla Air Conditioning Company, the manufacturer of the air conditioning units, as a third party defendant by generally alleging that it had manufactured the equipment complained of and had assisted in the design of the system. No specific duty on the part of Arkla to Florida Gas is alleged. At most, it might be theorized that Florida Gas is seeking to recover from Arkla upon the doctrine of implied warranty. A cause of action for a third party complaint has not been stated.
The second point posed by Florida Gas is that the trial court abused its discretion in not permitting it one more opportunity to state a cause of action. "Three strikes are out" in a baseball game; Florida Gas has been at bat four times. Under the most liberal construction of our modern rules, we hold that ample opportunity has been proffered to appellant.
Affirmed.
SPECTOR, C.J., and RAWLS and CARROLL, DONALD K., JJ., concur.