No. 72-564.District Court of Appeal of Florida, Third District.
February 19, 1973.
Appeal from the Civil Court of Record for Dade County, Edward S. Klein, J.
Ainslee R. Ferdie, Miami, for appellant.
Daniel Sepler and Paul G. Block, Hialeah, Lubow Gary, Miami, for appellee.
Before PEARSON, HENDRY and HAVERFIELD, JJ.
Appellant third party plaintiff appeals an order of the trial court dismissing its amended third party complaint with prejudice.
In an action by Decorator Services, Limited against appellant for services rendered in carpet installations for the plaintiff, the appellant filed a third party complaint against appellee and others. Appellee’s motion to dismiss that complaint was granted on May 5, 1971, and appellant was given 20 days in which to amend its third party complaint in order to state an appropriate cause of action. The amended third party complaint was filed on June 11, 1971, some seventeen days late. During the same period of time, the co-third party defendants moved to quash the service on the original third party complaint. The motion was granted but upon interlocutory appeal was reversed by this court on January 18, 1972. 4th Dimension Interiors, Inc. v. Decorator Services, Fla.App. 1972, 256 So.2d 571. It was not until April 5, 1972, that appellee moved to dismiss appellant’s amended third party complaint with prejudice due to its untimely filing. Thus appellee’s motion to dismiss came approximately ten months after the complaint to which it was directed was filed and almost three months after this court’s decision in the related appeal.
We have reviewed the record in light of the foregoing facts, considering the mutual
time delays of both appellant and appellee, and are of the opinion that the trial judge abused his discretion in dismissing the amended third party complaint of appellant with prejudice on the grounds of the untimeliness. Accordingly, we reverse.