WILLIAM B. BONE, INDIVIDUALLY AND AS CO-TRUSTEE OF THE AUBREY H. BONE REVOCABLE TRUST, APPELLANT,
v.
RUTH H. BONE AND RONALD IRWIN CROFT, APPELLEES

Fla. 2d DCA | 1996-07-19
No. 96-00019
RYDER, A.C.J., and LAZZARA, J., concur.
677 So. 2d 82 Florida District Court of Appeal, Second District (1996) Positive Treatment
Cited by 2 cases

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Synopsis

William B. Bone appeals the denial of his motion to change venue, arguing that his co-defendant Ronald Irwin Croft is not a bona fide defendant and therefore cannot establish venue in Pinellas County. The court agrees, holding that Croft, who shares the plaintiff's interests and seeks the same relief, cannot be aligned as a defendant solely to establish venue.


Holding

A party cannot be aligned as a defendant solely to establish venue. Because Croft shares the plaintiff's interests, has admitted all allegations, and seeks the same relief as the plaintiff, he is not a bona fide defendant and cannot provide the basis for venue in Pinellas County. The trial court erred in denying the change of venue motion.


Headnotes

[1] A party may not be named as a defendant solely for the purpose of establishing venue.

[2] Venue is proper in any county where a defendant resides if multiple defendants reside in different counties.

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Key Quotes

“A "defendant" is "a party named in a lawsuit against whom some type of relief or recovery is sought or who claims an interest adverse to the plaintiff."”

Establishes the legal definition of a defendant for venue purposes under Florida law

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Facts & Procedural History

Ruth H. Bone filed suit to remove William Bone as co-trustee and surcharge him for trust losses. She joined Croft as a defendant but sought no relief …

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Opinion of the Court
BLUE, Judge.

BLUE, Judge.

William B. Bone, individually and as co-trustee of the Aubrey H. Bone Revocable Trust, appeals the trial court’s order that denied a change of venue. He argues that his co-trustee, Ronald Irwin Croft, is not a bona fide defendant and, therefore, Croft’s presence in the suit as a defendant cannot establish venue in Pinellas County. We agree and reverse.

Ruth H. Bone, the trust’s beneficiary, filed this action to remove William Bone as co-trustee and to surcharge him for losses to the trust. In her complaint, Ruth Bone joined Croft as a defendant but sought no relief against him. In his answer, Croft admitted all of the complaint’s allegations and asserted an affirmative defense. Croft also brought a cross-claim against William Bone, seeking the same relief as Ruth Bone. The real property held by the trust is located in Highlands County. Ruth Bone and William Bone both reside in Highlands County but Croft resides in Pinellas County. Based on the assertion that Croft is not a bona fide defendant, William Bone filed a motion to abate and transfer venue. After a hearing, the trial court denied the motion.

Under section 47.011, Florida Statutes (1993), an action must be brought in the county where a defendant resides, where the cause of action accrued, or where the property in litigation is located. When there are multiple defendants in different counties, section 47.021 allows the action to be filed in any county where one of the defendants resides. A “defendant” is “a party named in a lawsuit against whom some type of relief or recovery is sought or who claims an interest adverse to the plaintiff. Fla.R.Civ.P. 1.210(a).” Turner v. Gallagher, 640 So. 2d 120, 121 (Fla. 5th DCA 1994) (holding that Department of Insurance is not a defendant for service of process rule even though sovereign immunity statute requires that Department receive notice of suits against government agencies).

A party may not be aligned as a defendant for the sole purpose of establish ing venue. Jacobs & Goodman, P.A. v. McLin, Bumsed, Morrison, Johnson & Robuck, P.A., 582 So. 2d 98 (Fla. 5th DCA 1991). In Jacobs & Goodman, the Fifth District held that one of the defendants had to be aligned with the plaintiff because he shared the plaintiffs interest in the relief sought and he did not have an interest adverse to the plaintiff. 582 So. 2d at 100. Likewise, in the present case, Croft shares the plaintiffs interests. He has admitted all of the allegations in Ruth Bone’s complaint and has filed a cross-claim seeking the same relief against William Bone. Thus, the trial court erred in denying a change of venue when Croft provided the only basis for venue in Pinellas County. Accordingly, we reverse.

RYDER, A.C.J., and LAZZARA, J., concur.


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Citator

Cited By

  • Dive Bimini, Inc. v. Roberts, 745 So. 2d 482 (Fla. 1st DCA 1999)
    …two or more defendants residing in different counties may be brought in any county where the defendant resides.” Thus, venue for an action against multiple defendants is proper in any county in which one of the defendants resides. See Bone v. Bone, 677 So. 2d 82, 83 (Fla. 2d DCA 1996); Coggin Pontiac, Inc. v. Putnam Auto Sales, Inc., 278 So. 2d 647, 649 (Fla. 1st DCA 1973). Further, the plaintiffs venue selection is presumptively correct and the party challenging venue has the burden to demonstrate any impr…

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