CARL DOMINO, INC. and CARL DOMINO, Individually v. MICHAEL DIXON

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
CARL DOMINO, INC., and CARL DOMINO, individually,
Appellants,
v.
MICHAEL DIXON, CAROL DIXON and
YOUR PLANNING PARTNER, LLC,
Appellees.
No. 4D21-2986
[March 8, 2023]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Samantha Schosberg Feuer, Judge; L.T. Case No. 50-2017-
CA-004091-XXXX-MB-AH.
Carl Domino, Jupiter, for appellants.
Renee Marie Smith, Jupiter, for appellees.
WARNER, J.
Appellant, Carl Domino, Inc. (“CDI”), appeals a final judgment in favor
of appellees, Michael and Carol Dixon and Your Planning Partner, LLC
(“YPP”), on all counts of CDI’s complaint against appellees as a result of
their terminating their association with CDI. CDI also appeals the final
judgment in favor of Michael on a counterclaim against it for unpaid
commissions. Appellant, Carl Domino, individually, appeals a final
judgment in favor of Michael and against him on a third-party complaint
for unpaid expenses on an apartment that Domino and Michael owned
together. We affirm the final judgment against CDI both on its claims and
Michael’s counterclaim. We reverse the final judgment on the third-party
complaint, because the complaint was improper under Florida Rule of Civil
Procedure 1.180.
Facts
CDI is a wealth management firm established by Domino. Domino
brought Michael into CDI as his sole partner in 2004. Michael served as
CDI’s chief operating officer. Michael’s daughter Carol also worked at CDI
beginning in August 2006 performing administrative functions.
In 2016, Michael terminated his relationship with CDI and went to work
for YPP, also a wealth management business formed by Carol. Several
clients with whom they worked at CDI became clients of YPP.
CDI filed suit against Michael, Carol and YPP in April 2017, alleging
multiple causes of action. The claims tried included: defamation against
Michael and Carol for disparaging the viability of CDI; unjust enrichment
against Michael; violation of duty and loyalty against Carol and Michael
for soliciting clients while still employed, or as an officer of CDI; and
destruction of corporate files against Carol. Essentially, CDI argued that
Michael and Carol took information from CDI and used it to solicit clients,
violating their duties to CDI and unjustly enriching themselves, and YPP
vicariously. In the unjust enrichment count, CDI alleged that Michael had
been paid according to a contract which had not been signed, and thus
CDI should be equitably entitled to the return of those monies.
Appellees filed an answer and affirmative defenses. They did not
include counterclaims or third-party claims. In September 2020, Michael
moved for leave to file a counterclaim against CDI and a third-party
complaint against Domino. In the counterclaim, Michael alleged breach
of contract and unjust enrichment for unpaid wages and commissions. In
the third-party complaint against Domino, Michael alleged that Domino
had not paid his proportionate share of expenses for an apartment he and
Domino owned together as tenants in common. He sought contribution
from Domino for his portion of the apartment expenses and partition of
the property.
CDI and Domino objected to both the counterclaims and the third-party
complaint, respectively. As to the counterclaim, CDI alleged that it was
not filed within the statute of limitations for unpaid wages. As to the third-
party complaint, Domino alleged that it was not a claim for subrogation,
contribution, or indemnification. Over those objections, the trial court
granted Michael’s motion for leave to file his counterclaim and third-party
complaint. Domino filed a motion to dismiss the third-party complaint,
again alleging that it was an improper third-party complaint based on
Florida Rule of Civil Procedure 1.180. The court denied the motion, and
Domino answered the third-party complaint.
The case proceeded to a bench trial. CDI called Michael and Carol as
witnesses, interrogating them on the salary structure, their contacts with
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clients, and what they took with them when they left the firm. CDI also
called a former client to testify about communications which the client had
with Michael before withdrawing his account from CDI.
Michael testified as to the amount that CDI still owed him and provided
spreadsheets to support his calculations. He also testified at length about
the apartment expenses.
Domino testified as to the workings of an investment advisory firm. He
testified that Michael was CDI’s financial operations manager and Michael
was responsible for calculating his own salary. Domino testified that he
had “no idea” what Michael was owed. Domino also testified regarding the
apartment and their arrangement.
The court entered final judgment in favor of Michael, Carol, and YPP on
all of CDI’s claims, finding insufficient evidence to support any of CDI’s
causes of action. As to Michael’s counterclaim for unpaid wages, the court
found Michael had an agreement with CDI and was due monies pursuant
to that agreement. The court awarded a sum based on Michael’s
testimony. The court also found for Michael on the third-party complaint,
ordering Domino to pay the expenses which Domino owed on the
apartment and ordering the apartment be partitioned. After motions for
rehearing were denied, both CDI and Domino appeal.
Analysis
Domino argues that the court erred in granting leave to file the third-
party complaint against him in this action, because it was not a proper
complaint under rule 1.180. The standard of review for the sufficiency of
a complaint is de novo. Donado v. PennyMac Corp., 174 So. 3d 1041, 1042
(Fla. 4th DCA 2015). The standard of review for the trial court’s
interpretation of the rules of civil procedure also is de novo. Id.Rule 1.180 governs third party complaint practice. That rule provides:
At any time after commencement of the action a defendant
may have a summons and complaint served on a person not
a party to the action who is or may be liable to the defendant
for all or part of the plaintiff’s claim against the defendant, and
may also assert any other claim that arises out of the
transaction or occurrence that is the subject matter of the
plaintiff’s claim.
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Fla. R. Civ. P. 1.180(a) (emphasis added). In Leggiere v. Merrill Lynch
Realty/Fla., Inc., 544 So. 2d 240 (Fla. 2d DCA 1989), the Second District
interpreted this rule as requiring the third-party plaintiff to allege a claim
of indemnification, subrogation, or contribution against the third-party
defendant before the third-party plaintiff could also allege any other claim
arising out of the same transaction, stating:
The sole question for our consideration is whether under Rule
1.180, Florida Rules of Civil Procedure, a defendant who seeks
to assert a derivative third party claim must first allege against
the third party defendant a cause of action based on
indemnification, subrogation or contribution before the third
party complainant may assert any other claim against the
third party defendant that grows out of the transaction or
occurrence that is the subject matter of the original plaintiff’s
claim. We hold that the third party claimant must first so
allege against the third party defendant a claim for
indemnification, subrogation or contribution. Prior to 1984,
Rule 1.180 was clearly limited to allow third party actions only
for indemnification, subrogation or contribution. In 1984, the
first sentence of Rule 1.180(a) was amended to provide as
follows:
At any time after commencement of the action a
defendant may have a summons and complaint served
on a person not a party to the action who is or may be
liable to the defendant for all or part of the plaintiff’s
claim against the defendant and may also assert any
other claim that arises out of the transaction or
occurrence that is the subject matter of the plaintiff’s
claim.
(Emphasis supplied.)
The [emphasized] portion of that first sentence of Rule
1.180(a) contains the principal added language and the
essential change made in the provision of the rule, and is the
language of primary importance to us in reaching our
conclusion. It is clear to us that by use of the word “and”
rather than “or” at the beginning of the added language the
rule change was meant to allow a claim in addition to but not
in absence of a claim for indemnification, subrogation or
contribution.
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Id. at 241–42. We adopted Leggiere in Dhaliwal v. Don L. Leasing Co., 600
So. 2d 533, 534 (Fla. 4th DCA 1992). See also N.Y. Buffet, Inc. v. Certain
Underwriters at Lloyd’s London, 950 So. 2d 438, 439 (Fla. 4th DCA 2007)
(“A claim for indemnification, subrogation, or contribution must be
brought as part of any third-party action under the rule.”).
Michael did not bring a claim for indemnification or subrogation in his
third-party complaint. While he sought contribution from Domino for the
apartment expenses, contribution under third-party practice means the
third-party defendant contributing to a judgment secured against the
third-party plaintiff in the main action. See Gortz v. Lytal, Reiter, Clark,
Sharpe, Roca, Fountain & Williams, 769 So. 2d 484, 486–87 (Fla. 4th DCA
2000) (“A claim for contribution arises when ‘parties have a common
liability to the injured person.’”) (quoting Fla. Farm Bureau Cas. Co. v.
Batton, 444 So. 2d 1128, 1129 (Fla. 4th DCA 1984)). Here, the third-party
complaint did not allege any common liability between Michael and
Domino to another party.
Michael’s sole response to Domino’s claim that the third-party
complaint was improper is to contend that neither the order granting the
motion to file a third-party complaint nor the order denying his motion to
dismiss the third-party complaint are part of appellate review from the
final judgment. Michael’s argument lacks any merit, as an appeal from
the final judgment is the first time Domino could challenge these orders.
An order denying a motion to dismiss a third-party complaint is an
interlocutory order not appealable under Florida Rule of Appellate
Procedure 9.130. In Maryland Casualty Co. v. Century Construction Corp.,
656 So. 2d 611 (Fla. 1st DCA 1995), the court confirmed, “[W]e hold that
the order denying [third-party defendant’s] motions to dismiss is not
immediately appealable pursuant to rule 9.130(a)(4). Rather, review must
await the entry of a final order in the third-party action.” Id. at 612(emphasis added). Although rule 9.130(a)(4) has changed since 1995, the
rule still does not contain any mechanism to appeal an order granting a
motion to file a third-party complaint, or an order denying a motion to
dismiss such a complaint. Thus, this is the first opportunity which
Domino had to challenge the trial court’s orders.
While some discretion may reside in a trial court as to whether a third-
party complaint arises out of the subject matter of the plaintiff’s claim,
there is no dispute in this case that the third-party complaint had nothing
to do with CDI’s claims against Michael, and Michael does not contend
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that he made any other claim of indemnity, subrogation, or contribution.
The apartment ownership was entirely independent of both Michael’s and
Domino’s business relationships with CDI. Therefore, the court erred in
allowing the third-party complaint to proceed. See also Mandala v.
Sarrow, 234 So. 2d 14, 14 (Fla. 4th DCA 1970) (reversing summary
judgment on third-party complaint, not on the merits but because trial
court allowed improper joinder of third-party action contrary to rule 1.180,
stating, “if we should merely reverse, upon conclusion of the case the
company could successfully appeal the trial court’s action in denying its
motion to dismiss because of its improper joinder under Florida Rules of
Civil Procedure, Rule 1.180”).
As to the final judgment on Michael’s counterclaim for commissions or
wages due, CDI argues that Michael’s claim was compulsory and was time
barred because it was not brought until a year and a half after the suit
commenced. 1 Michael did not assert a counterclaim in his original
answer, but he did allege an affirmative defense that he was owed money
from CDI. Michael then requested court permission to assert a
counterclaim on this issue. While Florida Rule of Civil Procedure 1.170(a)
does provide that all counterclaims which the defendant has against the
plaintiff arising out of the same transaction must be raised at the time the
pleading is served, a defendant may later file a counterclaim by leave of
court pursuant to rule 1.170(f):
Omitted Counterclaim or Crossclaim. When a pleader fails
to set up a counterclaim or crossclaim through oversight,
inadvertence, or excusable neglect, or when justice requires,
the pleader may set up the counterclaim or crossclaim by
amendment with leave of the court.
Michael requested and was granted leave to file the counterclaim. CDI has
not shown that the trial court abused its discretion in permitting Michael
to file the counterclaim, particularly since he had given notice of his claim
in an affirmative defense.
CDI also argues that the trial court’s judgment is not supported by
competent substantial evidence as to the amount of Michael’s unpaid
wages and commissions. At trial, Domino offered no evidence to challenge
Michael’s testimony as to the amount owed. Thus, the trial court did not
err in adopting the amount to which Michael testified.
1 On appeal, CDI does not argue that Michael’s claim is barred by the statute of
limitations for wage claims.
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As to the remaining claims, the trial court found no competent,
substantial evidence supported those claims. “When a decision in a non-
jury trial is based on findings of fact from disputed evidence, it is reviewed
on appeal for competent, substantial evidence.” Acoustic Innovations, Inc.
v. Schafer, 976 So. 2d 1139, 1143 (Fla. 4th DCA 2008). We have reviewed
the record and conclude that the trial court’s findings meet this standard.
One other ruling requires reversal. The trial court ruled that Michael
was entitled to attorney’s fees “as provided for by Florida Statute,” without
citing to any specific statute. The First District heard this same issue in
Cadenhead v. Gaetz, 677 So. 2d 96 (Fla. 1st DCA 1996), and the court
wrote:
Generally, attorney’s fees are not awarded unless authorized
by statute or contract. Here, the lower court failed to cite to
any statute or contract authorizing an award of attorneys’ fees
and failed to state any exception to this general rule. On
remand, the trial court shall either provide an appropriate
legal basis for the attorneys’ fee award or strike it.
Id. at 97 (internal citation omitted); see also Frymer v. Brettschneider, 710
So. 2d 10, 11–12 (Fla. 4th DCA 1998). We agree and remand for the court
to either state a legal basis for fees or to deny fees.
Conclusion
The trial court erred in granting Michael’s motion for leave to file a
third-party complaint against Domino based upon a transaction entirely
unrelated to the main complaint. The court also erred in awarding Michael
attorney’s fees on his counterclaim without providing statutory authority.
The court’s findings in favor of appellees on CDI’s claims and in favor of
Michael on the counterclaim are supported by competent, substantial
evidence.
We thus reverse the final judgment for Michael on his third-party
complaint, and remand with instructions to dismiss the claim. We also
reverse the award of attorneys’ fees to Michael as defendant/counter-
plaintiff. We affirm the judgment in favor of the Dixons and YPP on CDI’s
claims and affirm the judgment in favor of Michael on his counterclaim.
We remand for further proceedings in accordance with this opinion.
Affirmed in part and reversed in part.
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KLINGENSMITH, C.J., and CIKLIN, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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