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Toste Farm Corporation v. Hadbury6/5/2002
mation of the agreement, as well as reimbursement for the $1,125,000 he contributed to the partnership. Although Morash included a claim for equitable indemnity in the third-party complaint against Acebes' lawyers, the court below dismissed that claim and Morash has not challenged this dismissal on appeal. Thus, because Morash has not alleged that Acebes' attorneys were only secondarily liable to him for the $1,125,000 that Acebes sought to have Morash return to him, Morash's maintenance cause of action fails to state a proper third-party claim against Acebes' lawyers. Therefore, even the permissive-joinder rule would not permit Morash's maintenance claim to survive a dismissal motion. Having failed to assert the third-party defendants' derivative liability to Morash for Acebes' claims against Morash, Morash should not be allowed to proceed on an independent maintenance claim in a third-party complaint against Acebes' la wyers.
For the above reasons, I respectfully disagree with the majority's decision to reverse the motion justice's dismissal of the maintenance claim, and I would affirm the Superior Court's judgment in all respects. But I also concur with the majority's affirmance of the Superior Court's dismissal of the other claims in the third-party complaint.
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