ZUCKERMAN-VERNON CORP., A FLORIDA CORPORATION, APPELLANT,
v.
MURRAY ZELIKOFF ET AL., APPELLEES
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Zuckerman-Vernon Corp. appealed an interlocutory order severing and transferring only its third-party complaint to another jurisdiction while retaining the main action. The court held that a trial judge lacks authority under the rules to transfer a portion of a case to another court, only to order separate trials within the same court.
A trial judge lacks authority to transfer only a portion of a case to another jurisdiction. While RCP 1.270(b) permits ordering separate trials of claims or issues, it contemplates such trials occurring in the same court where the case is lodged. However, the trial court may transfer the entire cause to another jurisdiction pursuant to § 47.122, Fla.Stat.
[1] A trial court cannot sever and transfer only a portion of a case to another jurisdiction.
[2] The authority to order separate trials under RCP 1.270(b) contemplates that such trials will be held within the same trial court.
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Join FLexlaw to unlock all legal intelligence“The authority granted by RCP 1.270(b) to a trial judge 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.”
Establishes that the rule permitting separate trials does not authorize transferring portions of a case to other jurisdictions
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Join FLexlaw to unlock all legal intelligenceZelikoff sued Zuckerman-Vernon Corp. for damages based on alleged intentional misrepresentation that Florida realty conformed to building code. Zucker…
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HAVERFIELD, Judge.
Defendant-appellant takes this interlocutory appeal to seek review of the trial court’s order severing and transferring defendant’s third party action to another jurisdiction.
On October 11, 1972, plaintiff-appellee Murray Zeikoff filed a complaint against the defendant-appellant, Zuckerman-Ver-non Corp., for compensatory and punitive damages for an alleged intentional misrepresentation that certain realty located in Broward County, Florida conformed to the appropriate building code.1 Subsequently, plaintiff filed an amended complaint and second amended complaint. In December 1973, the trial judge entered an order granting defendant corporation leave to file a third party complaint. Thereupon, appellant filed a third party complaint against the third party defendant-appellees Clarwood Builders, Inc.,2 its president Howard M. Drusin, and May Plumbing Company, Inc.3 In response thereto, the third party defendant-appellees filed, inter alia, a motion to sever and as one of the grounds therefor alleged improper venue. After hearing oral argument thereon the trial judge entered the herein appealed order severing and transferring the third party action to Broward County and retaining jurisdiction of the proceedings between plaintiff-appellee and the defendant-appellant corporation.
On appeal, defendant contends that the trial judge erred in transferring to another jurisdiction only a portion of the case. We find this point well taken.
The authority granted by RCP 1.270(b) to a trial judge 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. 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 versible error in ordering a transfer of a portion of the case sub judice. Nevertheless, this conclusion does not preclude the trial court, after remand and upon a proper showing, from transferring the entire cause to the circuit court of Broward County pursuant to § 47.122, Fla.Stat., F. S.A. Reversed and remanded for further proceedings.
. Such representation was false in that there was faulty plumbing and other construction defects.
. The seller of the subject property to the defendant.
.The company which furnished and installed the alleged defective plumbing.
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Citator
Cited By
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Zuckerman-Vernon Corp. v. Murray Zelikoff & Clarwood Builders, Inc., 323 So. 2d 585 (Fla. 3d DCA 1975)…is court reversed the transfer order, holding that either the whole, matter should be transferred or none of it but that the complaint and third-party complaint should be kept together. Zuckerman-Vernon Corporation v. Zelikoff, Fla. [*586] App.1974, 303 So. 2d 391. During the pen-dency of the proceedings reported in the cited case, between the time this court released its opinion on November 5, 1974 and the date it denied a rehearing and the mandate issued, the trial judge entertained a motion for summary jud…
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Becker, Poliakoff & Streitfeld, P.A. v. Sachs, 404 So. 2d 1127 (Fla. 3d DCA 1981)…t the counterclaim should have accompanied the transfer 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).…
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NEW Holland, Inc. v. Trunk, 511 So. 2d 746 (Fla. 5th DCA 1987)…] only in the county where the property is located. § 78.03, Fla.Stat. (1985). In a multi-count suit or one involving claims and counterclaims the court cannot change venue of only a portion of the entire lawsuit. Zuckerman-Vernon Corp. v. Zelikoff, 303 So. 2d 391 (Fla. 3d DCA 1974); McCue v. Lane, 228 So. 2d 101 (Fla. 3d DCA 1969). See also Becker, Poliakoff & Streitfeld, P.A., v. Sachs, 404 So. 2d 1127 (Fla. 3d DCA 1981). Appellees argue the court can transfer venue because a prejudgment writ of re-plevin…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- McCUE v. Lane, 228 So. 2d 101 (Fla. 3d DCA 1969)
- S. Gulf Utils. v. Mayo, 239 So. 2d 146 (Fla. 1st DCA 1969)