STANDFORD BIRNHOLZ, APPELLANT,
v.
SIDNEY STEISEL ET AL., APPELLEES
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Appellant Birnholz filed two complaints against appellees Steisel seeking recovery of attorney fees based on identical causes of action. The trial court dismissed the second complaint rather than abating it pending resolution of the first complaint on appeal to the Florida Supreme Court. The court reversed, holding that the proper remedy was abatement, not dismissal.
The trial court erred in dismissing the second complaint outright. Under well-settled law, when a prior action is pending in a court of competent jurisdiction involving the same parties and identical cause of action, the later action should be abated rather than dismissed.
[1] The pendency of a prior action in a court of competent jurisdiction will abate a later action if the parties are the same and both suits are predicated on the same cause…
[2] A trial court errs in dismissing a second complaint filed with identical causes of action and parties when a prior action is still pending, rather than abating the second…
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Join FLexlaw to unlock all legal intelligence“It is a well settled general principle of law that the pendency of a prior action in a court of competent jurisdiction will abate a later action or suit commenced in the same court or another court of like jurisdiction, if the parties are the same and both suits are predicated on the same cause of action.”
Establishes the controlling legal principle governing when abatement applies rather than dismissal.
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Join FLexlaw to unlock all legal intelligenceAppellant filed a complaint on November 10, 1972, seeking recovery for attorney fees. Appellees moved to dismiss for want of prosecution on December 3…
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HENDRY, Judge.
Appellant, plaintiff below, appeals an order of the trial court dismissing his complaint entered pursuant to appellees’ defendants below, motion to dismiss.
On November 10, 1972, appellant filed a complaint, subsequently amended, against appellees seeking recovery for certain attorney fees. On December 3, 1974, appellees moved to dismiss the complaint, case no. 72-23332 in the circuit court, for want of prosecution. This motion was denied, and on January 10, 1975, appellees filed an interlocutory appeal from the order denying their motion. On May 20, 1975, this court entered an opinion reversing the order of the trial court. Appellant’s petition for rehearing was denied on June 18, 1975. Thereafter, appellant filed a petition for writ of certiorari to the Supreme Court of Florida asserting conflict jurisdiction. To date, this petition remains pending and un-disposed of by the Supreme Court.
On May 2, 1975, appellant filed another complaint, case no. 75-14039 in the circuit (ourt, against appellees setting forth identical causes of action to those in his previous amended complaint. Thereafter, on May 22, 1975, appellees filed a motion to dismiss this latter complaint. On August 14, 1975, the trial court entered an order granting appellees’ motion to dismiss on the grounds that the prior complaint in case no. 72-23332 was still pending and, because identical issues and parties were present, the latter complaint in case no. 75-14039 should be dismissed. From this order, appellant appeals.
Appellant contends that the trial court erred in dismissing the complaint in lieu of temporarily abating the action until a determination by the Supreme Court of Florida of the prior pending action. Appellee contends to the contrary.
It is a well settled general principle of law that the pendency of a prior action in a court of competent jurisdiction will abate a later action or suit commenced in the same court or another court of like jurisdiction, if the parties are the same and both suits are predicated on the same-cause of action. See 1 Am.Jur.2d, Abatement, Survival and Revival §§ 5-44; and 1 Fla. Jur. Abatement and Revival, §§ 5-8. In light of this general principle and based on the facts of this case, in our opinion the trial court erred in entering its order dated August 14, 1975, dismissing case no. 75-14039, rather than abating it.
We have considered the record, all points in the briefs and arguments of counsel in the light of the controlling principles of law, and have concluded that reversible error has been demonstrated. Therefore, for the reasons stated, the order appealed is reversed.
Reversed.
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Citator
Cited By (14 total)
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Henry Angelo & Sons, Inc. v. Ins. Co. OF N. Am., 451 So. 2d 1038 (Fla. 3d DCA 1984)…the subject matter of their counterclaim in the instant proceeding. We reverse and remand the matter to the trial court to enter an order of abatement as to the counterclaim pending resolution of the North Carolina proceeding. Birnholz v. Steisel, 338 So. 2d 862 (Fla.3d DCA 1976); Cicero v. Paradis, 184 So. 2d 212 (Fla.2d DCA 1966). Reversed and remanded with directions.…
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Thomas v. English, 448 So. 2d 623 (Fla. 4th DCA 1984)…atively (by application for a temporary injunction). See, e.g., Knight v. Global Contact Lens, Inc., 220 So. 2d 693 (Fla. 3d DCA 1969), Sarasota County v. Stanton Investment Co. of Missouri, 283 So. 2d 152 (Fla. 2d DCA 1973) and Birnholz v. Steisel, 338 So. 2d 862 (Fla. 3d DCA 1976). Further, we find competent substantial evidence supporting the actions of the trial court and therefore hold that the exercise of discretion which resulted in the granting of the injunction meets the [*624] reasonableness test si…
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Maler v. Baptist Hosp. OF Miami, Inc., 532 So. 2d 79 (Fla. 3d DCA 1988)…(not same, as here) party not “sufficient good cause”); Perez v. Cohen, 362 So. 2d 985 (Fla. 3d DCA 1978) (participation in appeal of a related, though not identical, cause insufficient to prevent dismissal under Rule 1.420(e)); Brinholz v. Steisel, 338 So. 2d 862 (Fla. 3d DCA 1976) (where plaintiff filed identical lawsuit to one pending on appeal, abatement, not dismissal, of the second action was appropriate). REVERSED AND REMANDED.…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Steisel v. Standford Birnholz, 313 So. 2d 125 (Fla. 3d DCA 1975)