Opinion
No. 98-0027.
Opinion filed December 8, 1999.
Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; John A. Frusciante, Judge; L.T. No. 97-11659 11.
Guy B. Bailey, Jr., Jesse C. Jones, Tracy L. Kramer of Bailey Harper Cronig Baker Arencibia Agudo, Miami, for appellant.
Albert G. Caruana and Dirk Lorenzen of Caruana, Langan, Lorenzen Mendelsohn, P.A., Miami, for appellee.
ON MOTION FOR REHEARING
The appellee has filed an extensive motion for rehearing claiming that our opinion significantly departs from prior law regarding splitting causes of action. We disagree. First, we stress again that the issue before the court is whether the mere filing of a second action while the first one is pending is a violation of the rule such that the second action must be dismissed, even where the first action is voluntarily dismissed prior to a ruling on a motion to dismiss the second action. In our opinion, we explained why the answer to that question is no.
Second, the appellee contends that our decision conflicts with Thermofin, Inc. v. Woodruff, 491 So.2d 344 (Fla. 4th DCA 1986). We conclude that it does not, because it appears to us that in Thermofin the first action was still pending at the time the second action was involuntarily dismissed. The court noted that "any relief to be obtained by appellant must be sought in the original proceeding." Id. at 345. In the instant case, by the time the court ruled on the motion to dismiss in the second action, the first action had already been dismissed. Therefore, there is no conflict with Thermofin.
The motion for rehearing is denied.
KLEIN and TAYLOR, JJ., concur.