New Plan Realty Trust v. Towers Apartments, Inc.

350 So. 2d 99, 1977 Fla. App. LEXIS 16760

• Court: District Court of Appeal of Florida
• Decided: September 13, 1977
• Docket: Nos. DD-20 and DD-145
• Status: Published

Opinions

PER CURIAM.

New Plan Realty Trust filed notice of interlocutory appeal in Case No. DD-20 from an order denying its motion to stay this proceeding pending the disposition of a suit in the State of New York covering the same subject matter and issues as are raised in this suit. Subsequently, the trial court entered an order modifying its previous order and granting the stay as to this Florida action except as to discovery proceedings. Appellant then filed a petition for common law writ of certiorari in Case No. DD-145 seeking review of the foregoing two orders of the trial court and simultaneously therewith filed a notice of voluntary dismissal as to Case No. DD-20. In the meantime, appellees had filed cross-assignments of error in Case No. DD-20 and objected to the notice of voluntary dismissal. Appellees also moved to consolidate the two cases and by this court’s order of September 7, 1976, the cases were consolidated. We treat the entire matter as common law cer-tiorari rather than interlocutory appeal.

The trial court properly exercised its discretion in granting the stay of this cause of action pending trial of the same issues in the New York suit but abused its discretion in excepting discovery proceedings from the stay. The whole purpose of the stay is to avoid duplicate proceedings in both New York and Florida, and we find no reasonable basis for allowing duplicate discovery proceedings.

Certiorari is granted and the cause is remanded with directions to vacate the exception to the stay which would allow discovery to proceed during the stay.

McCORD, C. J., and MILLS, J., concur. BOYER, J., dissents in part and concurs in part.