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The Fourth District Court of Appeal’s recent opinion in Cohen v. Scarnato, issued April 10, 2019, has us again rethinking the appropriate venue in which to bring a trust dispute action.
Florida Statute 47.122 provides that “[f]or 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.” If seeking a transfer of venue under this section, and as explained by the Cohencourt, affidavits or other evidence are necessary to demonstrate the necessity for change of venue based on the statutory factors of convenience of the parties or witnesses or the interest of justice.
The trial court was reversed because there was insufficient evidence to show that the change of venue was necessary for the convenience of the parties or witnesses or the interest of justice.
The Cohencourt also noted that the trial court erred in transferring venue without considering whether the transferee court was an appropriate venue where the matter could have been filed initially.
As a practical matter, what does this mean? Often a trustee is located in one location and the beneficiaries are elsewhere, which brings about these unique considerations. Florida Statute 736.0204 gives three choices for where a trust action can be brought, which include (1) any county where venue is proper under chapter 47; (2) any county where the beneficiary suing or being sued resides or has its principal place of administration; or (3) the county where the trust has its principal place of administration.
Sometimes the venue may be statutorily proper, but it may not be an appropriate or best forum. The doctrine of forum non conveniens – or inconvenient forum – applies Florida Statute 47.122 and the various factors set forth by the Florida Supreme Court in Kinney System, Inc. v. Continental Ins. Co., 674 So. 2d 86 (Fla. 1996) and Florida Rule of Civil Procedure 1.061. In Kinney, the Florida Supreme Court set forth four factors for use in deciding where a case is most fairly and conveniently litigated. A trial court is to consider these four factors:
(1) the trial court finds that an adequate alternate forum exists which possesses jurisdiction over the whole case, including all of the parties;
(2) the trial court finds that all relevant factors of private interest favor the alternate forum, weighing in the balance a strong presumption against disturbing plaintiffs’ initial forum choice;
(3) if the balance of private interests is at or near equipoise, the court further finds that factors of public interest tip the balance in favor of trial in the alternate forum; and
(4) the trial judge ensures that plaintiffs can reinstate their suit in the alternate forum without undue inconvenience or prejudice.
This analysis is designed to help assure an adequate and available forum exists for the litigation. The decision to transfer venue, however, falls within the discretion of the trial court judge. A thorough analysis of these rules and having the sufficient evidentiary support is necessary, as noted by the Cohencourt, for determining the appropriate venue for initiating (and defending) trust litigation.
If you believe you need legal help regarding a trust or probate matter, including one in which you question even the appropriate venue, please speak with an experienced trust and probate lawyer.