CLARA BARTLETT, APPELLANT,
v.
JAMES P. BENNETT AND E. PAUL DIETRICH, APPELLEES

Fla. 2d DCA | 1978-07-21
No. 77-1516
GRIMES, C. J., and DANAHY, J., concur.
360 So. 2d 1144 Florida District Court of Appeal, Second District (1978) Positive Treatment
Cited by 4 cases

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Synopsis

A malpractice plaintiff appealed the dismissal of her lawsuit against attorneys who allegedly failed to timely file a wrongful death action on her behalf. The court reversed the dismissal and instead imposed a stay of the malpractice action pending resolution of the underlying wrongful death case, finding that the two separate actions did not have sufficient identity of parties and causes to support abatement.


Holding

The court held that there was insufficient identity of parties and cause of action between the two suits to support abatement and dismissal. Instead, the court reversed the dismissal and remanded for entry of a temporary stay of the malpractice action pending further developments in the wrongful death case.


Headnotes

[1] A pending action may not be abated based on another action unless there is a sufficient identity of parties and cause of action.

[2] The outcome of a related lawsuit may bear on the issues in a subsequent malpractice action, but does not automatically warrant abatement of the malpractice claim.

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Key Quotes

“We hold that there was not sufficient identity of parties and cause of action in the two suits to support the order of abatement and dismissal of the cause of action for malpractice.”

Establishes the primary legal holding that abatement was improper due to lack of identity between the two actions.

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Facts & Procedural History

Appellant Bartlett sued her attorneys (appellees) for negligently failing to file a wrongful death action within the statute of limitations period. Th…

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Opinion of the Court
OTT, Judge.

OTT, Judge.

The appellant filed a complaint against the appellees (attorneys) in malpractice. The complaint alleged that the appellees had negligently failed to file an action for wrongful death of appellant’s husband within the period allowed by the applicable statute of limitations.

Appellees filed a Motion to Dismiss, Abate and Strike Complaint and an An swer. In the final analysis the appellees pleaded that a still pending and active wrongful death action by appellant as personal representative of her deceased husband’s estate required abatement of the malpractice action. The wrongful death action was against an entirely different party defendant and his liability insurance carrier. The trial court granted the appellees’ motion to abate and entered an order dismissing appellant’s “[cjomplaint and cause of action.”

Both parties conceded at the hearing on the motion to abate that the statute of limitations had been pleaded by the defendants in the wrongful death action; that the applicable period of limitation for a wrongful death action is 2 years; that the wrongful death action was not filed within 2 years of the date of death; that the trial judge in the wrongful death action had ruled that the 2 year limitation period did not commence to run until the appointment of a personal representative for the estate of the decedent; that this court has denied a petition for writ of certiorari to review the trial judge’s ruling on the running of the limitations period but the question is still appealable; and, that the wrongful death action was, therefore, still pending.

We hold that there was not sufficient identity of parties and cause of action in the two suits to support the order of abatement and dismissal of the cause of action for malpractice. 1 Fla.Jur. Abatement and Revival §§ 5, 6, 8 (1955). It is far from clear that the ultimate final judgment in the wrongful death action could be pleaded as a bar to the malpractice action. Horter v. Commercial Bank & Trust Co., 99 Fla. 678, 126 So. 909 (Fla.1930). This would at least be dependent upon which party the final judgment was entered against and upon what basis such final judgment was entered.

It is certainly true, however, that the outcome of the wrongful death case may have a definite bearing on the malpractice action and may even be arguably determinative, at least as to certain issues therein. Equally true is that if the personal representative had failed to institute the wrongful death action, such failure could very well have clouded her right to file or prosecute the malpractice action.

At the same time the uncertainty of the statute of limitation posture of the malpractice action fully warranted the commencement of the suit.1

Under all of the circumstances we conclude that the interests of the parties, together with the orderly and economical conduct of the litigation would best be served by a stay of further proceedings herein (the malpractice action) subject to further developments in the wrongful death action.

Accordingly, we set aside the order of the trial court dismissing the cause of action of the appellant and remand for the entry of a temporary stay order consistent with this opinion.

GRIMES, C. J., and DANAHY, J., concur. . On March 20, 1975 appellant was advised by the appellees that the statute of limitations had run in the wrongful death action. The complaint in malpractice was filed on March 11, 1977 — within the two year statute of limitations for malpractice set out in § 95.11, Fla.Stat. (1977).


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Citator

Cited By

  • Int'l Surplus Lines Ins. Co. v. Markham, 580 So. 2d 251 (Fla. 2d DCA 1991)
    …is pending in the same court or another court of comparable jurisdiction. See Lightsey v. Williams, 526 So. 2d 764 (Fla. 5th DCA 1988); Koehlke Components, Inc. v. South East Connectors, Inc., 456 So. 2d 554 (Fla. 3d DCA 1984); Bartlett v. Bennett, 360 So. 2d 1144 (Fla. 2d DCA 1978). This standard has not been met in the present case. Although ISLIC and the firm are in privity, their interests are antagonistic in both suits. See Whatley, 558 So. 2d at 122. Nevertheless, the firm argues that abatement of the…
  • …rm “abatement” in the trial court order may have been a misnomer; the court may have intended to enter a stay, an order which would have been within the trial court’s broad discretion in this case. See REWJB, 643 So. 2d at 1108; Bartlett v. Bennett, 360 So. 2d 1144 (Fla. 2d DCA 1978). That portion of the July 24, 1996 order abating the action is quashed, without prejudice to the trial court entering a stay order. GUNTHER, C.J., and STEVENSON and GROSS, JJ., concur.…

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