2d DCA: If a probate will contest and a civil trust action involving the same facts are both pending, is the right answer to "abate" one of the cases or "consolidate" them into a single trial?
Relinger v. Fox, --- So.3d ----, 2011 WL 439428 (Fla. 2d DCA Feb 09, 2011)
There are a number of reasons why a case may be abated and proceedings suspended. The court may order abatement because of the death of one of the parties. See here, for example, where a pending action to partition a joint tenancy with right of survivorship was abated by one joint tenant’s death. A case may also be abated if the same claims are already being litigated elsewhere. The administration of trusts can sometimes spawn multiple lawsuits, so litigators should be aware of how abatement works in this context.
In this case, the siblings of the decedent petitioned to revoke their brother’s 1984 will, and filed a petition for administration of another 2007 pour-over will and trust. The personal representative of the decedent, as a defendant in the probate case, challenged the validity of the 2007 will, claiming that there was undue influence and that the will was not properly executed. In a separate civil action, the personal representative as a plaintiff also attacked the validity of the trust for the same reasons, claiming that the trust had testamentary provisions and that there was undue influence and a lack of formalities. Because the parties were the same, and essentially the same issues were being litigated, you might think there was good reason to abate the civil case. The trial court certainly thought so, and granted the siblings’ motion to abate because of the existence of the probate proceedings.
Abatement? Wrong Answer:
But the 2d DCA disagreed. Not only must the issues and the parties be the same in order to abate a case, but the plaintiff in one case cannot be the defendant in the other. Because the personal representative was the defendant in the probate case and the plaintiff in the civil action, abatement was not proper:
[T]the abatement of Relinger'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 in one suit who is defendant in the other; in other words, that, where the party defendant in the prior suit is plaintiff in the subsequent suit, the first suit cannot be pleaded in abatement of the second.
Horter v. Commercial Bank & Trust Co., 126 So. 909, 912 (Fla. 1930). Abatement may be ordered only where the identities of parties in the actions are exact "because the court is necessarily projecting the effect of a case which has not been tried and a judgment which has not yet been rendered." Burns v. Grubbs Constr., Inc., 174 So. 2d 476, 478 (Fla. 3d DCA 1965). Here, Relinger is the plaintiff in the later civil action challenging the validity of the trust, but he is the defending party in the Foxes' probate action seeking to establish the validity of the concomitant will. This critical difference rendered abatement inappropriate in this case.
Consolidation? Right Answer:
While a consolidation of the cases may have been proper, the court refused to ignore the error and treat the abatement as if it were a consolidation:
It may be that the circuit court was concerned because the two actions raise similar, if not identical, questions about the decedent's capacity, whether he was unduly influenced, and whether the necessary formalities were met. But other procedures are available to address any problems caused by the pendency of two similar actions, such as a consolidation of the actions or a limited stay of one of them. Moresca, 231 So. 2d at 286 n.5; see also Martin v. Martin, 687 So. 2d 903, 907 (Fla. 4th DCA 1997) ("We know of no reason why a will contest pending in the probate division of the circuit court and an action involving the validity of a trust pending in the civil division of the circuit court cannot be consolidated under appropriate circumstances, such as where . . . the factual issues are the same."). The Foxes argue that we should view the circuit court's action "in essence" as a consolidation; we cannot. The circuit court granted their motion to abate, and in doing so, it departed from the essential requirements of law causing irreparable harm. We must therefore quash the order of abatement.