IN THE SUPREME COURT OF FLORIDA CASE NO. SC HARVEY JAY WEINBERG and KENNETH ALAN WEINBERG,

Transcription

1 IN THE SUPREME COURT OF FLORIDA CASE NO. SC BETTY WEINBERG, v. Petitioner, HARVEY JAY WEINBERG and KENNETH ALAN WEINBERG, Respondents. On Petition For Discretionary Review Of A Decision Of The Fourth District Court of Appeal Of Florida, Case No. 4D PETITIONER S JURISDICTIONAL BRIEF LAWRENCE R. METSCH (FBN ) THE METSCH LAW FIRM, P.A. Attorneys for Petitioner Biscayne Blvd., Suite 307 Aventura, FL (305) FAX: (305)

2 TABLE OF CONTENTS Page Cover Page... 1 Table Of Contents... 2 Table Of Citations... 3 Statement Of The Case And Facts...4 Summary Of Argument... 7 Argument... 8 Conclusion Certificate Of Service Certificate Of Compliance Appendix 2

3 TABLE OF CITATIONS Pages CASES Touchton v. Atlantic Coast Line Railroad Company, 155 So. 2d 738 (Fla. 3 rd DCA 1963)... 7,8 Weinberg v. Weinberg, 936 So. 2d 707 (Fla. 4 th DCA 2006)... 4,5,6,7,8,10 3

4 STATEMENT OF THE CASE AND FACTS Judge Warner s opinion for the Fourth District Court of Appeal of Florida in Weinberg v. Weinberg, 936 So. 2d 707 (Case No. 4D , issued August 9, 2006), 1 stated the case and facts in the following manner: Betty Weinberg appeals a non-final order denying her motion to dismiss the plaintiffs' complaint for improper venue. We affirm because the plaintiffs' initial selection of venue in Palm Beach County was proper. In 1992, Sidney Weinberg and his wife, Betty Weinberg, executed a revocable trust agreement in Palm Beach County, Florida. The trust corpus consisted of the Palm Beach County condominium unit in which Sidney and Betty resided, as well as certain personal property. The trust instrument provided that upon Sidney's death, Betty would receive a fee simple interest in the couple's condominium and fifty percent of the remaining trust assets. The trust also provided that Sidney's adult sons from a prior marriage were to receive monetary distributions from the trust at the time of his death. The adult sons are residents of Tennessee. Sidney Weinberg died on August 17, On August 23, 2005, Betty executed a document in which she purported to revoke the trust and take title to all property previously held in the trust. A few days later, she recorded this document in Palm Beach County. On February 1, 2006, Betty moved from Palm Beach County 1 A copy of the Fourth District s August 9, 2006, decision in Weinberg v. Weinberg, supra, is attached hereto as an Appendix. 4

5 936 So. 2d at 708. to Miami-Dade County. Several days later, Sidney's adult sons filed suit against Betty in Palm Beach County. The sons' complaint sought declaratory relief, as well as damages for breach of trust and breach of fiduciary duty. The gravamen of the sons' complaint was that the provisions of the trust regarding distributions to them were irrevocable upon the death of Sidney. Betty moved to dismiss the complaint for improper venue, noting that she was a resident of Miami-Dade County at the time the plaintiffs filed this lawsuit. The trial court denied the motion, prompting this appeal. Affirming the Circuit Court s denial of Petitioner s motion to dismiss for improper venue, the Fourth District reasoned: Section , Florida Statutes, the general venue statute, provides as follows: "Actions shall be brought only in the county where the defendant resides, where the cause of action accrued, or where the property in litigation is located." It is the prerogative of the plaintiff to select the venue of his or her suit, and when that choice is one of the three statutory alternatives, it will be honored. See A & M Eng'g Plastics, Inc. v. Energy Saving Tech. Co., 455 So.2d 1124 (Fla. 4th DCA 1984). Here, the sons chose to bring their suit where the cause of action accrued. In Tucker v. Fianson, 484 So.2d 1370, 1371 (Fla. 3d DCA 1986), the Third District explained that a tort claim accrues for venue purposes "where the last event necessary to make the defendant liable for the tort took place," or where the harmful effect of the defendant's acts first took effect. (citation omitted). Stated another way, a tort accrues where the plaintiff first 5

6 936 So. 2d at suffers injury. Wincor v. Cedars HealthCare Group, Ltd., 695 So.2d 924, 925 (Fla. 4th DCA 1997); see also Harb v. Commerce Realty Group, Inc., 881 So.2d 35, 36 (Fla. 4th DCA 2004) ("For purposes of venue, a tort accrues in the county where the plaintiff first suffers injury."). Petitioner, on August 21, 2006, moved that the Fourth District rehear and clarify its August 9, 2006, decision in Weinberg v. Weinberg, supra. Those motions were denied on September 8, Petitioner filed her Notice To Invoke The Discretionary Jurisdiction of this Court with the Clerk of the District Court on September 28,

7 SUMMARY OF ARGUMENT In Weinberg v. Weinberg, supra, the Fourth District held that Respondents, residents of the State of Tennessee, were privileged to bring suit against Petitioner in Palm Beach County, Florida, even though Petitioner, on the date litigation began, had become a resident of Miami-Dade County, Florida. That holding is in direct conflict with the Third District s holding, in Touchton v. Atlantic Coast Line Railroad Company, 155 So. 2d 738, 739 (Fla. 3 rd DCA 1963), that a nonresident plaintiff has no statutory right to bring his or her action in any particular forum. 7

8 ARGUMENT In Touchton v. Atlantic Coast Line Railroad Company, supra, the Third District held that the plaintiff, as a resident of Florida, had a statutory right to sue a foreign corporation in any county in which the foreign corporation had an agent or other representative and that the doctrine of forum non conveniens could not be invoked to defeat that right, even though the plaintiff did not reside in the county in which he chose to bring his action for personal injuries. Judge Tillman Pearson s opinion for the Third District noted: 155 So. 2d at 739. The reason, as we understand it, that the reason, as we understand it, that the doctrine [of forum non conveniens] has been applied in Florida to nonresident plaintiffs is because as to such plaintiffs, there is no statutory right to bring the action in any particular forum. This cannot be said to be so in a case of a resident plaintiff acting under the section of the Florida Statute above quoted. It is evident that the Fourth District and the Third District have taken conflicting positions with respect to the question whether a nonresident plaintiff is privileged to determine the venue of a civil action against a resident defendant. The Fourth District, in Weinberg v. Weinberg, supra, has held that a nonresident 8

9 plaintiff possesses such a privilege, while the Third District, in Touchton v. Atlantic Coast Line Railroad Company, supra, has held that a nonresident plaintiff possesses no such privilege. 9

10 CONCLUSION This Court should accept jurisdiction of Weinberg v. Weinberg, supra, thereby paving the way for a resolution of the foregoing conflict between the decisions of the Fourth and Third District Courts of Appeal of Florida. Respectfully submitted, THE METSCH LAW FIRM, P.A. Attorneys for Petitioner Biscayne Blvd. Suite 307 Aventura, FL (305) FAX: (305) by LAWRENCE R. METSCH FBN

11 CERTIFICATE OF SERVICE I hereby certify that true copies of the foregoing jurisdictional brief were mailed this day of October, 2006, to: Adam G. Heffner, Esq. Law Offices of Adam G. Heffner, P.A N.W. Corporate Blvd. Suite 301-West Building Boca Raton, FL Steven H. Shulman, Esq. Law Offices of Steven H. Shulman, P.A Executive Center Drive Suite 360 Boca Raton, FL LAWRENCE R. METSCH 11

12 CERTIFICATE OF COMPLIANCE Pursuant to Rule 9.210(b)(2), Florida Rules of Appellate Procedure (1977), I hereby certify that the foregoing jurisdictional brief has been printed in Times New Roman 14-point font. LAWRENCE R. METSCH October,