RONALD C. BRUNS, APPELLANT,
v.
THOMAS P. ARCHER, DAVID C. BROWN, STEPHEN MITCHELL, CLIFFORD WENZEL, AND RUSSELL C. WIMER, AS THE BOARD OF COUNTY COMMISSIONERS, ETC., ET AL., APPELLEES
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The court held that a prior action cannot be abated in favor of a subsequent action, especially when the parties are not identical.
[1] A prior lawsuit may not be abated in favor of a subsequent lawsuit.
[2] For abatement of one action in favor of another, both actions must have the same plaintiffs and the same defendants.
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Join FLexlaw to unlock all legal intelligenceAppellant filed a suit to enjoin the creation of a water and sewer district. Appellees later filed a suit to validate bonds for the district and moved…
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PER CURIAM.
For the one point meriting discussion herein appellant asks us to reverse an order of the trial court abating this case. We agree with appellant that the order was improper and remand the case to the trial court so that it may continue on its normal course.
In December 1975, appellant Ronald C. Bruns filed a complaint in circuit court seeking to enjoin appellees, as the Board of County Commissioners of Collier County, Florida, and ex-officio Governing Board of Collier County Water-Sewer District, from creating the Collier County Water and Sewer District and acting as the District’s governing board. Subsequently, appellees filed a suit in which they asked the court to validate bonds issued by the Water and Sewer District. Appellant became a defendant in this proceeding pursuant to Section 75.02, Florida Statutes (1975) since he was a resident of Collier County. Appellees next filed a motion in appellant’s case in which they asked the trial court to consolidate the two cases and abate appellant’s case in favor of their own. After a hearing, the trial court entered an order granting appellees’ request for consolidation and abatement.
We find that the trial court erred in abating appellant’s case in favor of appellees’ case. Under the law of abatement, while a subsequent action may be abated in favor of a prior action, a prior action may never be abated in favor of a subsequent action. See State ex rel. Dos Anigos v. Lehman, 100 Fla. 1313, 131 So. 533 (1930). Moreover, both actions must have the same plaintiffs and the same defendants. Horter v. Commercial Bank & Trust Co., 99 Fla. 678, 126 So. 909 (1930). Therefore, the court could not abate appellant’s case because his was the prior action and because the two actions did not have the same plaintiff.
In view whereof, the order appealed from should be, and it is hereby, reversed; and the cause is remanded for further proceedings not inconsistent herewith.
HOBSON, A. C. J., SCHEB, J., and McNULTY, JOSEPH P. (Ret.), Associate Judge, concur.
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Fla. Ins. Guar. Ass'n, Inc. v. The Celotex Corp. & The Jim Walter Corp., 547 So. 2d 660 (Fla. 2d DCA 1989)…ully argued in the trial court that this rule does not apply here because there is not an identity of parties in the three lawsuits. The identity of parties is a condition precedent to dismissal or abatement in cases of this nature. Bruns v. Archer, 352 So. 2d 121 (Fla. 2d DCA 1977). We determine, however, that that requirement has been met here. Clearly, if Celotex and Jim Walter had instituted separate actions in Hillsborough County, each would have been subject to dismissal or abatement. The appellees cann…
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Relinger v. FOX, 55 So. 3d 638 (Fla. 2d DCA 2011)…r’s action was a departure from the essential requirements of law. Abatement requires a strict identity of parties between the two suits, and it can be ordered only when the plaintiffs and the defendants in the actions are the same. Bruns v. Archer, 352 So. 2d 121, 122 (Fla. 2d DCA 1977). [T]he general rule [is] that a plea of a prior action pending applies only where plaintiff in both suits is the same person, and both are commenced by himself, and not to cases in which there are cross-suits by a plaintiff…
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Diversified Servs., Inc. v. United Servs. Auto. Ass'n, 583 So. 2d 376 (Fla. 3d DCA 1991)…PER CURIAM. Affirmed. See Amador v. Hernandez, 548 So. 2d 849 (Fla. 3d DCA 1989), rev. denied, 558 So. 2d 18 (Fla.1990); Bruns v. Archer, 352 So. 2d 121 (Fla. 2d DCA 1977).…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State of Fla. ex rel. Dos Anigos, Inc. v. Lehman, 100 Fla. 1313 (Fla. 1930)
- Horter v. The Commercial Bank & Tr. Co., 99 Fla. 678 (Fla. 1930)