NATHANIEL W. TINDALL, II, APPELLANT,
v.
HUGH N. SMITH, APPELLEE
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Nathaniel Tindall appeals a trial court's order granting a change of venue to Hugh Smith. The appellate court reversed, holding that the trial court abused its discretion because the record lacked evidence supporting any statutory basis for the venue transfer.
The trial court abused its discretion in granting the change of venue because: (1) Smith failed to file a verified motion as required by section 47.101; (2) Smith furnished no proof to sustain his burden under section 47.121 regarding jury qualification; and (3) no showing was made that the action could have been brought in Pinellas County under the permissible venue alternatives in section 47.011.
[1] A trial court abuses its discretion in granting a change of venue when the record does not reflect the existence of the circumstances under which a change of venue is per…
[2] A motion for change of venue under section 47.101 of the Florida Statutes must be verified and set forth the facts on which it is based, supported by affidavits.
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Join FLexlaw to unlock all legal intelligence“the granting or denying of a motion for change of venue is within the sound discretion of the trial court, and the trial court's decision should not be disturbed absent a demonstration of a palpable abuse or grossly improvident exercise of discretion”
Establishes the standard of review for venue transfer decisions
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Join FLexlaw to unlock all legal intelligenceHugh Smith moved for a change of venue from the original county to Pinellas County, arguing that a potential key witness (Sandy Wheeler) had been rece…
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PARKER, Judge.
Nathaniel Tindall appeals the trial court’s nonfinal order granting Hugh Smith’s motion for change of venue. We reverse, concluding that the trial court abused its discretion in transferring venue as the record does not reflect the existence of the circumstances under which a change of venue is permissible.
We recognize that all courts have the power to grant changes of venue. § 47.091, Fla.Stat. (1991). Chapter 47 contains the circumstances under which a court may grant a change of venue. See §§ 47.101, 47.121, 47.122, Fla.Stat. (1991). Moreover, the granting or denying of a motion for change of venue is within the sound discretion of the trial court, and the trial court’s decision should not be disturbed absent a demonstration of a palpable abuse or grossly improvident exercise of discretion. Adams v. Knabb Turpentine Co., Inc., 435 So. 2d 944 (Fla. 1st DCA 1983) (citing McMichael v. Harris, 127 Fla. 861, 174 So. 323 (1937)).
Under section 47.101, a party may move for a change of venue when he believes he will not receive a fair trial in the court where the action is pending either because the adverse party has an undue influence over the inhabitants of the county or because the movant is so odious to the inhabitants of the county. The motion for change of venue under this section shall be verified, shall set forth the facts on which it is based, and shall be supported by affidavits. Our record reflects that Smith did not file a verified motion, as required by this section.
Under section 47.121, the trial court shall grant a change of venue when it appears impracticable to obtain a qualified jury in the county where the action is pending. Smith argues on appeal that since Sandy Wheeler, a potential key witness, was recently convicted of criminal fraud in Hillsborough County after a heavily publicized trial, a fair and impartial jury would be difficult if not impossible to select, citing Thornton v. DeBerry by and through DeBerry, 548 So. 2d 1177 (Fla. 4th DCA 1989). Smith, however, failed to furnish any proof in the trial court to sustain his burden of demonstrating entitlement to the transfer of venue to Pinellas County. See McMichael, 174 So. at 325; Groome v. State, 448 So. 2d 82 (Fla. 4th DCA 1984).
Under section 47.122, the trial court may grant a change of venue to another court in which it might have been brought for the convenience of the parties or witnesses or in the interest of justice. Pursuant to section 47.011, actions may be brought only in the county where the defendant resides, where the cause of action accrued, or where the property in litigation is located. There is no showing, under the permitted venue alternatives, that this action could have been brought in Pinellas County. See § 47.011, Fla.Stat. (1991). See also Bingham v. Manson, 363 So. 2d 370 (Fla. 1st DCA 1978).
Based on the above, we conclude that the trial court abused its discretion in granting the motion for change of venue. Accordingly, we reverse the trial court’s order granting Smith’s motion for change of venue and remand for proceedings consistent with this opinion.
THREADGILL, A.C.J., and BLUE, J., concur.
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Citator
Cited By (11 total)
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Mgmt. Computer Controls, Inc. v. Charles Perry Constr., Inc., 743 So. 2d 627 (Fla. 1st DCA 1999)…rp., 584 So. 2d 161, 163 (Fla. 1st DCA 1991). Likewise, the abuse of discretion standard applies if the trial court finds it necessary to change venue under section 47.101, Florida Statutes, to ensure the right to a fair trial. See Tindall v. Smith, 601 So. 2d 627 (Fla. 2d DCA 1992). In these examples, the trial court must make a reasoned judgment based on the facts and circumstances. Whether venue is proper in a particular forum, however, is not a matter of judicial discretion. If there is no legal basis to…
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Vero v. Vero, 659 So. 2d 1348 (Fla. 5th DCA 1995)…ct one of the appropriate counties. Washington v. Washington, 613 So. 2d 594, 595 (Fla. 5th DCA 1993). Under these circumstances, the trial court did not abuse its discretion in denying the former wife’s motion for change of venue. Tindall v. Smith, 601 So. 2d 627, 628 (Fla. 2d DCA 1992); Hu, 426 So. 2d at 1281. AFFIRMED. GOSHORN and HARRIS, JJ., concur. . See Fla.R.App.P. 9.130(3)(A). . Section 61.13(2)(c) provides: The circuit court in the county in which either parent or the child resides and the circ…
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Pricewaterhousecoopers LLP v. Cedar Res., Inc., 761 So. 2d 1131 (Fla. 2d DCA 1999)…ee J.L.S. v. R.J.L., 708 So. 2d 293 (Fla. 2d DCA 1998). If the trial court transfers venue to a location where the action could not have been brought, such a transfer is probably both an error of law and an abuse of discretion. See Tindall v. Smith, 601 So. 2d 627 (Fla. 2d DCA 1992); Bingham v. Manson, 363 So. 2d 370 (Fla. 1st DCA 1978). By contrast, when a trial court is presented with a motion to transfer venue based on the impropriety of the plaintiffs venue selection, the defendant is arguing that, as a…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Adams v. Knabb Turpentine Co., Inc., 435 So. 2d 944 (Fla. 1st DCA 1983)
- McMichael v. Harris, 127 Fla. 861 (Fla. 1937)
- Bingham v. Manson, 363 So. 2d 370 (Fla. 1st DCA 1978)
- Groome v. Abrams, 448 So. 2d 82 (Fla. 4th DCA 1984)
- D.L. Thornton, M.D. v. DeBERRY, 548 So. 2d 1177 (Fla. 4th DCA 1989)