FLORENCE A. MCCUE AND GERALD P. MCCUE, HER HUSBAND, APPELLANTS,
v.
DR. DAVID C. LANE ET AL., APPELLEES
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
The court held that the trial court erred in severing and transferring only part of a civil action to another county, as neither the procedural rule nor the subsequently enacted statute authorized such partial transfer.
Plaintiffs filed a negligence action against multiple defendants. The trial court ordered separate trials for some defendants and transferred those cl…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Severance Of Claims cases and more on FLexlaw
The appellant Florence A. McCue, joined by her husband Gerald P. McCue, filed a negligence action (medical malpractice) in the circuit court of Dade County, against Dr. David C. Lane, Dr. Robert C. Woolsey, Dr. Jack Mickley, Dr. Curtis J. Flanagan, Dr. Peritz Scheinberg, Dr. Robert E. Ingersoll, Medical Protective Insurance Company and Memorial Hospital.
The defendants Lane, Woolsey, Flanagan, Memorial Hospital and Medical Protective Insurance Company filed motions to sever, and on March 6, 1969, the circuit court in Dade County in which the case was pending, entered orders for separate trial of the claims or issues relating to those defendants and transferring that part of the case to Broward County (Seventeenth Judicial Circuit) for trial there, retaining for trial in Dade County the claims or issues as to the remaining defendants Mickley, Scheinberg and Ingersoll. From those orders the plaintiff filed interlocutory appeal No. 69-257.
We find merit in that appeal. Rule 1.270 RCP, 30 F.S.A., entitled “Consolidation: Separate Trials,” by subsection (b) provides: “The court in furtherance of convenience or to avoid prejudice may order a separate trial of any claim, cross-claim, counterclaim or third party claim or of any separate issue or of any number of claims, cross-claims, counterclaims, third party claims or issues.” The authority granted by that rule to order a separate trial of any claim or number of claims or of separate issues, necessarily contemplates that the separate trial or trials thereof will be held in the case in the trial court in which the case is lodged. That rule makes no provision for transferring one or more of the claims or issues in the case to a court in another jurisdiction for separate trial there, which is what was done in this instance. When those orders were entered (March 6, 1969), no statute was in effect for the transfer of a civil action to another jurisdiction for reasons of convenience. Accordingly, the several orders which are challenged on appeal No. 69-257 are reversed.
On March 26, 1969, approximately three weeks after entering the orders of severance and transfer to Broward County, as to certain defendants as discussed above, an amended complaint was filed by the plaintiffs in the cause in Dade County, against the same defendants. Again, based on defendants’ motions for severance, the court in Dade County entered an order on June 30, 1969, providing for separate trials of claims or issues as to the defendants Lane, Woolsey, Mickley, Flanagan, Inger-*103soil, Medical Protective Insurance Company, and Memorial Hospital, and transferred the parts of the cause relating to those defendants to the circuit court in Broward County (Seventeenth Judicial Circuit). Upon so doing, the court retained for trial in Dade County the cause of action or issues relating to the defendant Scheinberg. Appeal No. 69-662 was taken by the plaintiffs from that order.
At the time the order of June 30, 1969 was entered there had become effective (on June 6, 1969) an act of the 1969 legislature (c. 69-83) entitled “An Act relating to venue; amending chapter 47, Florida Statutes, by adding section 47.122; authorizing change of venue for the convenience of parties or witnesses or in the interest of justice; providing an effective date.” Section 47.122, added by that amendment, reads as follows: “For the convenience of the parties or witnesses or in the interest of justice, any court of record may transfer any civil action to any other court of record in which it might have been brought.” (Emphasis added.) By its terms the act became effective upon becoming a law, and it was approved by the Governor and filed in the office of the Secretary of State on June 6, 1969.
Under the authority of the 1969 act, the court in Dade County, upon a proper showing, could have transferred the entire cause to the circuit court of Brow-ard County, where some of the defendants resided, and which, therefore, was a court wherein the action might have been brought. By permitting transfer of “any civil action,” the statute did not provide for or authorize the transfer of some but not all of the issues or separate claims involved in a case. For that reason, and also for the reason given in reversing the earlier transfer orders of March 6, 1969, we find merit in appeal No. 69-662 and reverse the order of June 30, 1969. This ruling would not preclude the trial court, after remand, from considering the propriety of transferring the entire “civil action” to the circuit court of Broward County, upon a proper showing therefor consistent with the provisions of said statute, § 47.122 Fla.Stats., F.S.A. See Highland Ins. Co. v. Walker Memorial Sanitarium and Benevolent Ass’n, Fla.App. 1969, 225 So.2d 572.
Reversed and remanded for further proceedings.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
S. Gulf Utils. v. Mayo, 239 So. 2d 146 (Fla. 1st DCA 1969)…iss was properly granted. Appellant’s contention that Rule 1.060, Florida Rules of Civil Procedure, 30 F.S.A., requires a transfer of its claim against the city to the appropriate court in Volusia County is contrary to the decision in McCue v. Lane, 228 So. 2d 101 (Fla.App.1969), holding that it is improper to transfer only a portion of a case. Appellant has failed to demonstrate that the lower court’s ruling that its claims against the two defendants should be adjudicated separately is erroneous. Accordingl…
-
Zuckerman-Vernon Corp. v. Murray Zelikoff, 303 So. 2d 391 (Fla. 3d DCA 1974)…thereof will be held in the case in the trial court in which the case is lodged. However, that rule makes no provision for transferring one or more of the claims or issues in the case to a court in another jurisdiction. McCue v. Lane, Fla.App. 1969, 228 So. 2d 101; Southern Gulf Utilities v. Mayo, Fla.App.1969, 239 So. 2d 146. Thus, we conclude the trial judge committed re [*393] versible error in ordering a transfer of a portion of the case sub judice. Nevertheless, this conclusion does not preclude the tria…
-
Becker, Poliakoff & Streitfeld, P.A. v. Sachs, 404 So. 2d 1127 (Fla. 3d DCA 1981)…ansfer of the claim for damages to Broward County where a prior action is pending. See Ven-Fuel v. Jacksonville Electric Authority, 332 So. 2d 81 (Fla.3d DCA 1975); Zuckerman-Vernon Corp. v. Zelikoff, 303 So. 2d 391 (Fla.3d DCA 1974); McCue v. Lane, 228 So. 2d 101 (Fla.3d DCA 1969).…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Highland Ins. Co. v. Walker Mem'l Sanitarium & Benevolent Ass'n, 225 So. 2d 572 (Fla. 2d DCA 1969)