GUNTHER FLAIG IN A REPRESENTATIVE CAPACITY ON BEHALF OF AND IN THE RIGHT OF PALMCREST HOMES OF TAMPA BAY, LLC, A FLORIDA LIMITED LIABILITY COMPANY, PETITIONER,
v.
CHRIS SULLIVAN; ALEXANDER SULLIVAN; ADAM SCHOENBAUM; JILL CREAGER; PROVIDENCE FAMILY OFFICES, LLC; SAB INVESTORS, LLC; A & S PROPERTIES OF FLORIDA, LLC; AND CTS EQUITIES, LP, RESPONDENTS

Fla. 2d DCA | 2014-07-18
No. 2D13-5380
DAVIS, C.J., and CASANUEVA, J., Concur.
141 So. 3d 1274 Florida District Court of Appeal, Second District (2014) Positive Treatment
Cited by 2 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Gunther Flaig, in a representative capacity for Palmcrest Homes of Tampa Bay, LLC, filed a derivative lawsuit against multiple respondents. The trial court issued an order it labeled as 'abatement' but which the appellate court interpreted as a 'stay' of proceedings pending resolution of overlapping claims in other lawsuits. The Florida District Court of Appeal denied Flaig's petition for certiorari review, finding the stay order proper and not constituting irreparable harm.


Holding

The appellate court held that although the trial court's order was labeled 'abatement,' it should be treated as a valid 'stay' based on the court's apparent intent. The stay order is proper because it permits the derivative suit to proceed if the issues are not resolved in other litigation, and any resulting delay or inconvenience does not constitute the irreparable harm required for certiorari relief.


Headnotes

[1] A court may stay proceedings in a lawsuit pending the resolution of other litigation, even if the parties in the lawsuits are not identical, if the court's intent is to p…

[2] An order that ostensibly abates a suit but allows it to proceed if underlying issues are not resolved in other litigation will be treated as a stay order based on the app…

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Key Quotes

“An important difference between abating a suit and staying it is that the former terminates the action, necessitating a refiling of it, whereas the latter merely pauses proceedings in the stayed suit until the happening of a contingency.”

Establishes the fundamental distinction between abatement and stay that is central to the court's analysis.

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Facts & Procedural History

Flaig filed a derivative lawsuit on behalf of Palmcrest Homes of Tampa Bay, LLC, containing five counts against the respondents. Similar claims were a…

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Opinion of the Court
NORTHCUTT, Judge.

NORTHCUTT, Judge.

Gunther Flaig filed a derivative lawsuit on behalf of Palmcrest Homes of Tampa Bay, LLC, against the respondents in this case. Similar claims to those underlying the five counts in the derivative suit were at issue in two other pending lawsuits. The parties in the three lawsuits, although somewhat overlapping, were not identical. After a hearing on a number of motions in this suit, the circuit court stated that “the claims being brought by Mr. Flaig are duplicative of other pending litigation. As long as that litigation is being prosecuted, this action is abated.” Flaig petitioned for certiorari review of the court’s order abating the suit. We deny the petition.

Flaig correctly points out that abatement pending resolution of other lawsuits is proper only if the identities of the parties in the lawsuits are identical. See Relinger v. Fox, 55 So.3d 638, 640 (Fla. 2d DCA 2011). But it is apparent to us that the court below intended to stay the instant suit, not to abate it.

An important difference between abating a suit and staying it is that the *1276former terminates the action, necessitating a refiling of it, whereas the latter merely pauses proceedings in the stayed suit until the happening of a contingency. See Perry v. Fireman’s Fund Ins. Co., 879 So.2d 429, 430 (Fla. 2d DCA 1980) (describing difference between abatement and stay). Here, the circuit court’s order on this point states: “Should those other actions be dismissed without a resolution of the issues underlying this case, Mr. Flaig can move forward to prosecute this action. Until then, all litigation, including all discovery, in this case is STAYED.” (Emphasis in original.) Accordingly, we treat this order as a stay of the proceedings below. See Perry, 379 So.2d at 430 (treating order ostensibly abating suit as a stay order based on the apparent intent of the order); see also Dep’t of Children & Families v. L.D., 840 So.2d 432, 434 (Fla. 5th DCA 2003) (same).

Although we may review a stay order under our certiorari jurisdiction, see art. V, § 4(b)(3), Fla. Const.; Fla. R. App. P. 9.030(b)(2)(A); Perry, 379 So.2d at 429, we deny the petition in this case. The order staying the proceedings properly provides that the derivative suit may go forward if the issues raised therein are not decided in other litigation. Any resulting delay or inconvenience to the parties would not suffice as the irreparable harm that would permit us to issue a writ of certiorari. See Cruz v. Cooperativa de Seguros Multiples de Puerto Rico, Inc., 76 So.3d 394, 398 (Fla. 2d DCA 2011), review denied, 97 So.3d 823 (Fla.2012).

Petition denied.

DAVIS, C.J., and CASANUEVA, J., Concur.


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