Winning the "race to the courthouse": the principle of priority.

• Author: Insignares, Luis E.
• Position: Florida

When two jurisdictions have concurrent jurisdiction over a dispute, the "principle of priority" generally applies to allow the first-filed action to proceed. (1) As explained in Bedingfield v. Bedingfield, 417 So. 2d 1047 (Fla. 4th DCA 1995), rev. dism., 427 So. 2d 736 (Fla. 1983), receded from on other grounds, Thomas v. Thomas, 724 So. 2d 1246 (Fla. 4th DCA 1999), in its narrowest sense, the principle applies only to courts "within one sovereignty." However, although the "principle is not applicable between sovereign jurisdictions as a matter of duty," as a matter of comity a court may, in its discretion, stay a proceeding before it "on the grounds that a case involving the same subject matter and parties" is pending elsewhere. (2)

Whether as a matter of duty or as a discretionary matter of comity, the principle of priority applies to all types of cases. Although there have been a large number of divorce and family law cases that have analyzed the principle, such as the cases previously cited, the principle can be applied in any other type of case as well, such as commercial disputes (3) or probate matters. (4)

As a matter of comity, the principle of priority is applied to courts of sister states as well as to international questions. (5) The Florida Supreme Court, in Siegel v. Siegel, 575 So. 2d 1267 (Fla. 1991), recognized the general principle of priority, but qualified it slightly, stating that in a discretionary scenario, a stay of the later action would ordinarily, but not necessarily, be the correct result. Citing Schwartz v. DeLoach, 453 So. 2d 454, 455 (Fla. 2d DCA 1984), the Siegel court opined that undue delay in the first-filed action could justify denying a stay in the later action, and that unstated "additional factors or circumstances" might also warrant a denial of a stay in the later action. (6)

More recently, the "extraordinary circumstances" allowing for an exception to the "ordinary" result under the principle of priority were found to exist in Parker v. Estate of Bealer, 890 So. 2d 508 (Fla. 4th DCA 2005). In that probate case, the decedent moved to Florida so that his granddaughter could take care of him, and executed a will in Florida describing him as a Florida resident. After the decedent's death, three years after his move to Florida, notice of administration of the Florida will was sent to the decedent's daughter in Maryland and she won the "race to the courthouse" by filing a petition to probate the Florida will there, claiming the decedent was actually a Maryland resident. The personal representative in the Florida estate then filed a petition to establish venue in Florida, and the daughter relied on the principle of priority to seek a stay in favor of the Maryland proceedings. The Florida court refused to stay the Florida proceedings, and the appellate court affirmed. The appellate court noted that the Maryland court had not admitted the will to probate, that the will had been admitted in Florida, that notice to creditors had been filed, that creditors had made claims, that the federal estate-tax return was due, and that entering a stay would result in a substantial increase in the cost of administration.

An analogous situation was presented in a family law context in Maraj v. Maraj, 642 So. 2d 1103 (Fla. 4th DCA 1994). In this case, the husband filed a motion to dismiss or abate a Florida divorce action because he had previously filed a divorce suit in Trinidad and Tobago. The trial court refused to stay the Florida proceeding and the appellate court affirmed, noting that, inter alia, though the parties originally had resided in Trinidad, they had been in Florida since 1987. In addition, only one of the parties' children resided in Trinidad, the family owned and operated a Florida business, and the family owned substantial other property in Florida. The appellate court held that under those facts, and the trial court's acceptance of the wife's contention that the Florida action sought more extensive relief and raised different issues than the prior foreign suit, the trial court had not abused its discretion in refusing to stay the suit.

The Maraj court's consideration of the difference in issues between the two competing suits raises the question of just how "similar" the two suits have to be in order for the principle of priority to be applicable. While there is no bright-line rule, Florida courts do not require both cases to involve the exact same cause of action or legal remedy. Rather, the operative question is whether the issues in the two cases are "substantially" similar. (7)

In the family law context, the requirement of similarity is exemplified by divorce suits and those suits seeking remedies less than an actual divorce. Florida courts, including the Florida Supreme Court, have held that while separate maintenance and divorce suits clearly are not identical, they are sufficiently similar for the principle of priority to apply between the two types of cases. (8) Case law from other American jurisdictions is in accord. (9)

As the application of the principle of priority is discretionary, in both an interstate and an international scenario, general considerations of equity and substantial justice may be argued in contending that a Florida court should exercise its discretion regarding the principle of priority in a given case. In Maraj, the appellate court noted that the trial court properly denied a motion for stay of the Florida proceedings, even though the wife did not claim that deferring to the Trinidadian proceedings would result in injustice. Suppose, however, that a party had first sued for divorce in a religious court in a foreign country in which women's rights were markedly different than those accorded in Florida, such as in a court enforcing Islamic sharia law. Under general comity principles, Florida courts can refuse to apply or recognize foreign law that is contrary to Florida public policy. (10) Thus, in interstate or especially international scenarios, a Florida litigant who...