text:
    Jonathan M. WHITMORE, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-4650.
    District Court of Appeal of Florida, First District.
    Aug. 1, 2013.
    Rehearing Denied Sept. 19, 2013.
    Jonathan M. Whitmore, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Brittany Ann Rhodaback, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Jonathan M. 'Whitmore appeals the denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800 asserting that his Habitual Felony Offender (“HFO”) sentence for burglary of a dwelling is illegal because he has only one prior qualifying conviction. See § 775.084(l)(a), Fla. Stat. (2010) (a defendant must have two or more prior felony convictions for HFO status). Specifically, "Whitmore contends that one of the two convictions used to habitualize him does not qualify as a prior conviction because, adjudication of guilt was withheld, and he had completed the one-year county jail sentence before committing the current offense. We disagree, and affirm.

In 2009, Whitmore entered a negotiated plea of guilty to grand theft; the trial court withheld adjudication of guilt and imposed twelve months’ unsupervised probation, with a special condition that Whit-more serve twelve months in the county jail. “[T]he placing of a person on probation or community control without an adjudication of guilt shall be treated as a prior conviction” for purposes of qualifying the person for HFO sentencing. § 775.084(2), Fla. Stat. (2010). Further, a defendant qualifies as HFO if he or she committed the current offense within five years of the date of conviction of the last prior felony. § 775.084(l)(a)2.b., Fla. Stat. (2010). Whitmore’s grand theft conviction occurred in 2009; he committed burglary of a dwelling in 2010. Because Whitmore satisfied the criteria for HFO sentencing, the postconviction court correctly denied his 3.800 motion.

AFFIRMED.

PADOVANO, MARSTILLER, and MAKAR, JJ., concur.


source: Caselaw Access Project

author: ROBERTS, J.

license: Public Domain

text:
    The NEW JERUSALEM CHURCH OF GOD, INC., Appellant/Cross-Appellee, v. SNEADS COMMUNITY CHURCH, INC., a Florida Not-for-Profit Corporation, James H. Lewis a/k/a J.H. Lewis, and Clara M. Lewis, his Wife, Appellees/Cross-Appellants.
    No. 1D12-2603.
    District Court of Appeal of Florida, First District.
    Sept. 12, 2013.
    Rehearing Denied Oct. 18, 2013.
    Howard S. Marks and Jessica K. Hew of Burr & Forman LLP, Orlando, for Appellant/Cross-Appellee.

      H. Guy Green of Green Law Firm; Frank A. Baker and Kathryn Michelle Blankenship Tagert of Baker, Mercer & Young, Marianna, for Appellees/Cross-Ap-pellants.
   ROBERTS, J.

This appeal involves the ownership of a piece of real property housing a church in Jackson County, Florida. After a jury trial, title was quieted in favor of the ap-pellee, Sneads Community Church, Inc. (SCC). The appellant, New Jerusalem Church of God, Inc. (NJC, Inc.), raises several issues on appeal. Primarily, it argues that the trial court erred in denying its motions for directed verdict and judgment notwithstanding the verdict (JNOV) on the grounds that NJC, Inc., is a hierarchical church and, therefore, owns the property at issue. We agree with the appellant that the trial court erred in denying its motion for directed verdict on this ground and accordingly reverse the denial of its motion for JNOV. The appellant also raises issues regarding the denial of its motion for new trial, namely whether the trial court erred in restricting its voir dire and whether the trial court erred in denying its requested jury instruction. We find no error in the voir dire and do not address the jury instruction issue as it is subsumed by our reversal. In light of our reversal, we also find it unnecessary to address the appellees’ cross-appeal.

Facts

NJC, Inc., was founded by Bishop R.B. Hemingway and incorporated in 1947. NJC, Inc., self-identifies as a hierarchical church, meaning that there is a mother church in Orlando, Florida, and various local churches, primarily in Georgia and Florida, whose pastors are appointed by NJC, Inc., who receive guidance from NJC, Inc., when requested, and who are directed to follow NJC, Inc.’s religious tenets and doctrines including its governing document, The Book of Rules (the Book). The Book includes various requirements for church members including tithing and attendance at annual conferences.

With regard to property ownership by NJC, Inc.’s local churches, the Book mandates that local property is to be held in trust by NJC, Inc., by a legally elected board of trustees who are members of the church. The Book also provides that the local church deeds are to contain a trust clause that the property is for the ministry and membership of NJC, Inc., and subject to its doctrines and laws. With regard to property ownership, the Book provides:

Members of any New Jerusalem Church of God disorganizing or dissolving cannot use or take any property with them; such property will revert to the State annual for church purposes only under the supervision of the District Bishop.

The New Jerusalem Church of God of Sneads, Florida (NJC, Sneads), came into being sometime in the early 1960s. In 1964, Bishop Hemingway appointed Willis L. Raines, Sr., as the pastor of NJC, Sneads. In 1965, at an annual NJC, Inc., conference, appellee Mr. Lewis was ordained as a deacon. As early as 1965, NJC, Sneads, was reporting money to NJC, Inc., at the annual conference. As of 1965, NJC, Inc., believed that NJC, Sneads, was under its umbrella of churches.

In 1966, NJC, Sneads, using money raised by local parishioners, purchased the property at issue. Title to the local property was taken by Raines, Mr. Lewis, Mrs. Lewis, and two others as “trustees of the New Jerusalem Church of God of Sneads, Florida.” This deed did not conform to the manner dictated by the Book in several undisputed ways: the trustees were not elected, the local church was not deeded to NJC, Inc., and the requisite trust clause was not included. The appellees argue that this non-conformance was intentional to reflect their intent that the local church would own the property rather than NJC, Inc. The appellant maintains that it was not aware that the deed did not conform to the Book because NJC, Sneads, affirmatively represented that the property was deeded to NJC, Inc., and continued to actively participate with NJC, Inc., long after the property was acquired.

By all accounts, NJC, Sneads, actively participated in NJC, Inc., from the 1960s to the 1990s in various ways such as by attending annual conferences and contributing financially. Appellees Mr. and Mrs. Lewis along with Raines all admitted that for 30 years, NJC, Sneads, was associated with NJC, Inc., and that NJC, Sneads, followed the Book to some extent. However, the appellees seem to make the distinction that NJC, Sneads, was loosely associated -with the New Jerusalem Church of God, but argue that it was not under the NJC, Inc., umbrella.

By the mid-1990s, Raines had left NJC, Sneads, and NJC, Sneads, became dissatisfied with the replacement pastor appointed by NJC, Inc. In 1995, a meeting was held in Sneads with representatives from NJC, Sneads, and NJC, Inc., during which NJC, Sneads, expressed its displeasure with NJC, Inc. The effect of this meeting reverberated differently with the parties. The appellant maintains that it understood NJC, Sneads’ frustrations, but did not believe that NJC, Sneads, was formally disaffiliating from NJC, Inc. The appellees, however, maintain that this meeting constituted their notice that NJC, Sneads, was completely parting ways with NJC, Inc.

In 1997, the trustees on the original 1966 deed (including the appellees Mr. and Mrs. Lewis) conveyed the property “as trustees of the New Jerusalem Church of God of Sneads, Florida” to SCC. It was by this conveyance that the appellee SCC asserted ownership in the property. This conveyance was made without the knowledge of the appellant, who claimed to be unaware of the cloud on its title to the property until 2000.

In 2002, the appellant filed a complaint to quiet title in its favor. In the complaint, the appellant asserted that it was a hierarchical church and argued that the appel-lees were prohibited from claiming any right to the property as per NJC, Inc.’s governing documents. The appellant also argued that the appellee SCC had no right to the property because the purported grantors in the 1997 deed had no actual or apparent authority from NJC, Inc., the cestui que trust, to convey the property to SCC. The appellees filed affirmative defenses and counterclaimed to quiet title in favor of SCC on the basis of the 1997 conveyance.

A jury trial was held in which the appellant’s witnesses testified that, although the Book did not specifically state that NJC, Inc., was a hierarchical church, the structure of the organization and manner of governance was clearly hierarchical. At the close of testimony, the appellant moved for directed verdict, arguing that the trial court was obligated to defer to its self-characterization as a hierarchical church. The appellant further argued that the evidence showed NJC, Sneads, was a part of the hierarchical church structure, and by virtue of this hierarchical structure, the property was owned by NJC, Inc. The trial court denied the motion for directed verdict, and the case was submitted to the jury, which returned a verdict finding that the property was owned by SCC.

The appellant filed a motion for JNOV in which it requested a judgment in accordance with its motion for directed verdict and based upon the manifest weight of the evidence in its favor. The motion for JNOV was denied, and final judgment was entered quieting title in favor of SCC.

We review the trial court’s denial of the motion for directed verdict and the motion for JNOV de novo. See Specialty Marine & Indus. Supplies, Inc. v. Venus, 66 So.3d 306, 309 (Fla. 1st DCA 2011). As stated in Lindon v. Dalton Hotel Corp., 49 So.3d 299, 303 (Fla. 5th DCA 2010):

When deciding the appropriateness of a directed verdict or JNOV, Florida trial and appellate courts use the test of whether the verdict is, for JNOVs, or would be, for directed verdicts, supported by competent, substantial evidence. Speedway SuperAmerica, LLC v. Dupont, 933 So.2d 75, 79 (Fla. 5th DCA 2006). A motion for directed verdict or JNOV should be granted only if no view of the evidence could support a verdict for the nonmoving party and the trial court therefore determines that no reasonable jury could render a verdict for that party. See Cecile Resort, Ltd. v. Hokanson, 729 So.2d 446, 447 (Fla. 5th DCA 1999). If there are conflicts in the evidence or different reasonable inferences may be drawn from it, then the issue is a factual one that should be submitted to the jury and not be decided by the trial court as a matter of law.

In considering the issues in this case, we find two layers of inquiry are necessary. First, whether the trial court was obligated, as a matter of law, to defer to NJC, Inc.’s self-characterization as a hierarchical church. Second, whether, as a matter of law and a matter of fact, NJC, Sneads, was affiliated with NJC, Inc., such that the property belonged to NJC, Inc. We find that both of these inquiries should be answered in the affirmative, thus requiring reversal of the final judgment.

NJC, Inc., as a Hierarchical Church

Over the years, the courts have been faced with balancing the constitutional guarantees regarding religion found in First Amendment with the need for judicial intervention in the resolution of inter-church disputes. The case law has unfolded to create two approaches to resolve interchurch disputes: the “neutral principles approach” and the “deference approach.”

The appellant represents that, with regard to resolving church-related property disputes, Florida has adopted the deference approach. The deference approach originated in Watson v. Jones, 80 U.S. (13 Wall) 679, 20 L.Ed. 666 (1871). Watson ruled that, in a hierarchical church structure, the local church congregation could not withdraw from the hierarchical church, denounce its authority, refuse to abide by its judgments, and still retain the local church property. Id. at 734-35. That ruling was based upon Watson’s holding that the civil courts must accept and enforce the decisions of the hierarchical church tribunals in matters of discipline, of faith, or ecclesiastical rule, custom, or law. Id. at 727. Watson articulated the need for deference to church authority under the notion of implied consent. That is, those who voluntarily unite themselves to a religious association do so with an implied consent to the association’s manner of governance and are bound to submit to it. Id. at 728-29.

But it would be a vain consent and would lead to the total subversion of such religious bodies, if any one aggrieved by one of their decisions could appeal to the secular courts and have them reversed.

Id.

The deference approach was later approved in Serbian East Orthodox Diocese for the United States & Canada v. Milivo-jevich, 426 U.S. 696, 709, 96 S.Ct. 2372, 49 L.Ed.2d 151 (1976) (stating that where resolution of ecclesiastical disputes cannot be made without extensive inquiry by civil courts into religious law and polity, “the First and Fourteenth Amendments mandate that civil courts shall not disturb the decisions of the highest ecclesiastical tribunal within a church of hierarchical polity, but must accept such decisions as binding on them, in their application to the religious issues of doctrine or polity before them.”).

Florida adopted the deference approach to church property disputes in Mills v. Baldwin, 362 So.2d 2, 7 (Fla.1978), wherein the Florida Supreme Court held that, when a portion of the congregation of a local church withdrew from a hierarchical church with which the local church had been affiliated, ownership of the property of the local church did not transfer to the separating body, but remained with the congregation that remained loyal to and recognized by the hierarchical church. Mills was appealed to the United States Supreme Court, which vacated the judgment and remanded the case for reconsideration in light of Jones v. Wolf, 443 U.S. 595, 99 S.Ct. 3020, 61 L.Ed.2d 775 (1979) (stating that church property disputes may also be resolved by applying neutral principles of law). See Baldwin v. Mills, 443 U.S. 914, 99 S.Ct. 3105, 61 L.Ed.2d 878 (1979). Following remand, the Florida Supreme Court reinstated its previous decision in Mills. See Mills v. Baldwin, 377 So.2d 971 (Fla.1980). This decision was also appealed to the United States Supreme Court, but certiorari was denied. See Baldwin v. Mills, 446 U.S. 983, 100 S.Ct. 2964, 64 L.Ed.2d 839 (1980). The history of Mills makes it “apparent that Florida has made the decision to apply the deference to church authority approach when resolving church property disputes.” Townsend v. Teagle, 467 So.2d 772, 774 (Fla. 1st DCA 1985).

In the instant case, NJC, Inc., asserted that it is a hierarchical church, a characterization that the appellees claim to have disputed, but offered no proof to support the dispute. To allow the trial court or, in this case, the jury to determine whether NJC, Inc., was hierarchical allows the finder of fact to delve into matters of religious doctrine and polity — an inquiry that is clearly prohibited. As such, the trial court was obligated to defer to NJC, Inc.’s self-characterization and to recognize, as a matter of law, that NJC, Inc., is a hierarchical church.

Upon determining, as a matter of law, that NJC, Inc., is a hierarchical church, it would follow then that NJC, Inc., controls the property of its local affiliates. See Bethel AME Church of Newberry, Fla. v. Domingo, 654 So.2d 233 (Fla. 1st DCA 1995) (holding that Mills requires that church property remain with the parent church where the church is hierarchical in structure). While this is the general rule in Florida, this rule does not end our inquiry. To simply conclude that local church property automatically flows to the mother church by virtue of a hierarchical church’s claim of ownership could lead to unfair results. Rather, we find that a second layer of inquiry is relevant here to determine property ownership. That is whether NJC, Sneads, was affiliated with NJC, Inc., such that it was a part of, and subordinate to, the hierarchical structure.

Ownership of the Property

As a matter of fact, the evidence showed that NJC, Sneads, was affiliated with NJC, Inc., for over 30 years. Such evidence included the fact that pastors for NJC, Sneads, were appointed by NJC, Inc.; NJC, Sneads, contributed to NJC, Inc., financially; and NJC, Sneads, participated in NJC, Inc.’s annual conferences and events. Finally, members of NJC, Sneads, admitted to the affiliation. NJC, Sneads’ position seems to be its affiliation was loose and that, in certain matters including property ownership, it chose to deviate from NJC, Inc.’s structure. We cannot agree to this characterization of the relationship.

In Falls Church v. Protestant Episcopal Church in the United States, 285 Va. 651, 740 S.E.2d 530, 540 (2013), the Virginia Supreme Court observed that the relationship created by a local church’s decision to join a hierarchical church is analogous to a contractual relationship. We find this general analogy fitting here. The evidence clearly showed mutual assent to the hierarchical relationship; NJC, Sneads, assented to NJC, Inc.’s hierarchy for over 30 years by, among other things, contributing financially to NJC, Inc., attending annual conferences, and, in return, received the benefit of the guidance from NJC, Inc., and the use of the church name. NJC, Inc., clearly assented to NJC, Sneads’ membership as well. When NJC, Sneads, voluntarily affiliated with NJC, Inc., it was subject to all the provisions in the Book and could not pick and choose which religious tenets to adopt. By choosing to unite under NJC, Inc., NJC, Sneads, consented to NJC, Inc.’s governance and, specifically in this case, structure of property ownership.

NJC, Sneads, argues that title was taken in trust for the New Jerusalem Church of Sneads, Florida, not NJC, Inc. We do not find the language of the deed availing as “of Sneads, Florida” was clearly descriptive, and the only incorporated entity at the time was NJC, Inc. See Sweet v. Ranger Realty Co., 108 Fla. 249, 146 So. 199, 200 (1933) (holding that where the identity of a corporation is clear, a corporate misnomer is not material).

Based on the foregoing, we find that NJC, Sneads, was clearly affiliated with NJC, Inc., a hierarchical church. Under the hierarchical property structure as set forth in NJC, Inc.’s governance, as well as our jurisprudence, the property belongs to NJC, Inc. See Full Gospel Temple of Tallahassee v. Redd, 82 So.2d 589, 590 (Fla.1955) (holding that, when the appellants withdrew from the parent church, they “carried nothing but their membership with them; the parent church retained title to the properties.”). The trial court erred in denying NJC, Inc’s motions for directed verdict and JNOV on this ground. Accordingly, we set aside the final judgment quieting title in favor of SCC and remand the matter with instructions that judgment be entered in favor of NJC, Inc.

REVERSED and REMANDED with instructions.

LEWIS, C.J., and ROWE, J., concur.

      . This structure was defined in Watson as one where "the religious congregation or ecclesiastical body holding the property was but a subordinate member of some general church organization in which there are superior ecclesiastical tribunals with a general and ultimate power of control more or less complete, in some supreme judicatory over the whole membership of that general organization.” Id. at 722-23.

      . Notably, NJC, Inc.’s own representative testified that church members were directed to follow the Book, but admitted that some of its tenets were no longer universally followed as they were outdated, i.e., the prohibition on playing horseshoes.


author: PER CURIAM.

text:
    Oscar CRAWFORD, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-4930.
    District Court of Appeal of Florida, First District.
    Sept. 18, 2013.
    Nancy A. Daniels, Public Defender, and Glenna Joyce Reeves, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Angela R. Hensel, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We affirm without comment Crawford’s conviction and sentence for violation of youthful offender probation. We remand, however, for the sole purpose of having the trial court designate in Crawford’s judgment and sentence whether he maintains his youthful offender status. See Jacques v. State, 95 So.3d 419, 421 (Fla. 3d DCA 2012); Mistretta v. State, 99 So.3d 561, 562 (Fla. 2d DCA 2012). Crawford need not be present for the administrative task of correcting the sentence.

CLARK, ROWE, and SWANSON, JJ., concur.


text:
    Joseph W. ATKINS, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-3031.
    District Court of Appeal of Florida, First District.
    Sept. 23, 2013.
    Rehearing Denied Oct. 18, 2013.
    Melissa J. Ford, Assistant Regional Conflict Counsel, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Angela R. Hensel, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appfellant seeks a new trial, claiming the trial court committed reversible error when it denied his request for self-representation upon finding appellant was not competent to represent himself. We agree. The record shows appellant presumptively made an unequivocal request for self-representation by repeatedly seeking to discharge defense counsel, whom he found unacceptable, after being informed that he was not entitled to substitute counsel. See Pasha v. State, 39 So.3d 1259, 1262 (Fla.2010). After conducting the necessary inquiry pursuant to Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), the trial court could not deny appellant’s request by finding appellant was not competent to represent himself. State v. Bowen, 698 So.2d 248 (Fla.1997). Rather, the court had to determine whether appellant was competent to waive the right to counsel. Weaver v. State, 894 So.2d 178, 193 (Fla.2004). Based on the court’s Faretta inquiry, there was no basis to conclude appellant was not competent to waive his right to counsel. See Laidler v. State, 69 So.3d 1008, 1009 (Fla. 1st DCA 2011). Accordingly, we reverse and remand for a new trial. Id. 1009-10. In light of this disposition, we do not reach appellant’s remaining claim on appeal.

REVERSED and REMANDED.

CLARK, ROWE, and SWANSON, JJ., concur.


text:
    PNC BANK, N.A., Appellant, v. Jimmie P. NEAL, Jr., Colleen M. Neal, et al., Appellees.
    No. 1D12-2544.
    District Court of Appeal of Florida, First District.
    Oct. 25, 2013.
    Stephen T. Maher, Edward J. O’Shee-han, and Anthony R. Yanez of Shutts & Bowen LLP, Miami, for Appellant.
    Sharon Delene Regan of Regan and Roark, Attys., Pensacola; Gregory Wilhelm of Law Offices of Martinez & Wilhelm, PA, Gulf Breeze, for Appellee.
   PER CURIAM.

PNC Bank, N.A., appeals the circuit court’s order granting the Neals motion to dismiss with prejudice PNC Bank’s foreclosure action against them. We affirm, but point out that the dismissal with prejudice of PNC Bank’s foreclosure action against the Neals does not preclude PNC Bank from instituting a new foreclosure action based on a different act or a new date of default not alleged in the dismissed action. See Star Funding Solutions, LLC v. Krondes, 101 So.3d 403 (Fla. 4th DCA 2012) (citing Singleton v. Greymar Assocs., 882 So.2d 1004,1005 (Fla.2004)).

AFFIRMED.

THOMAS, CLARK, and ROWE, JJ., concur.


text:
    Lyndon Bayne JOHNSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-4846.
    District Court of Appeal of Florida, First District.
    Oct. 30, 2013.
    Rehearing Denied Dec. 17, 2013.
    Lyndon Bayne Johnson, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of counsel is denied on the merits.

WETHERELL, SWANSON, and OSTERHAUS, JJ., concur.


text:
    Yves SAINTYL, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-4865.
    District Court of Appeal of Florida, First District.
    Oct. 30, 2013.
    Rehearing Denied Dec. 17, 2013.
    Yves Saintyl, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

WETHERELL, SWANSON, and OSTERHAUS, JJ., concur.


text:
    Douglas SINCLAIR, Petitioner, v. STATE of Florida and Michael D. Crews, Secretary, Florida Department of Corrections, Respondents.
    No. 1D13-4813.
    District Court of Appeal of Florida, First District.
    Oct. 31, 2013.
    Rehearing Denied Dec. 17, 2013.
    Douglas Sinclair, pro se, Petitioner.
    No appearance for Respondents.
   PER CURIAM.

The petition for writ of habeas corpus is DISMISSED as unauthorized pursuant to Baker v. State, 878 So.2d 1236 (Fla.2004). Moreover, we conclude that the petition is clearly frivolous, inasmuch as it raises a claim that has been considered and rejected as unfounded at least twice by the trial court, whose rulings in this regard have been affirmed on appeal by this court. Accordingly, we direct the clerk of the court to forward a copy of this opinion to the appropriate institution within the Department of Corrections for consideration of disciplinary measures against Sinclair pursuant to section 944.279(1), Florida Statutes.

LEWIS, C.J., ROWE and MAKAR, JJ., concur.


author: COHEN, J.

text:
    Alexander MILANICK, Appellant, v. STATE of Florida, Appellee.
    No. 5D13-4493.
    District Court of Appeal of Florida, Fifth District.
    May 16, 2014.
    Rehearing En Banc Denied Sept. 17, 2014.
    Michael J. Walker of R. Matthews Miles, Jr., P.A., Holly Hill, for Appellant.
    Pamela Jo Bondi, Attorney General, and Diane L. Guillemette, Assistant Attorney General, Tallahassee, for Appellee.
   COHEN, J.

Alexander Milanick appeals a non-final order denying his motion to quash and dismiss the proceeding. He argues that the case should have been dismissed based on the State’s failure to personally serve him. We agree and reverse.

The instant action was brought by the State pursuant to section 112.317(7), Florida Statutes, which authorizes the State to bring a civil action to recover costs and fees awarded by the Florida Commission on Ethics. Previously, the Florida Commission on Ethics had entered an order against Milanick with which Milanick never complied.

The State attempted to personally serve Milanick but was unsuccessful; thus, it constructively served him instead. Mi-lanick filed a notice of special appearance and motion to quash and dismiss the proceeding on the ground that he had not been personally served with process and that the trial court lacked jurisdiction over him. The State responded by admitting that it failed to personally serve Milanick and filing a proof of service by publication. The trial court denied Milanick’s motion, ruling that the case was a debt enforcement case and that constructive service was sufficient to confer personal jurisdiction under section 49.011(1), Florida Statutes. This timely appeal followed.

Section 49.011, Florida Statutes, provides that service by publication may be made in any action or proceeding “[t]o enforce any legal or equitable lien or claim to any title or interest in real or personal property within the jurisdiction of the court or any fund held or debt owing by any party on whom process can be served within [Florida].” § 49.011(1), Fla. Stat. (2013). The case law is clear, however, that constructive service by publication under this statute cannot confer a court with jurisdiction over a person. See Drury v. Nat’l Auto Lenders, Inc., 83 So.3d 951, 952 (Fla. 3d DCA 2012) (“Service by publication confers only in rem or quasi in rem jurisdiction upon a trial court. A personal money judgment necessitates in personam jurisdiction over the defendant.” (citation omitted)); Huguenor v. Huguenor, 420 So.2d 344, 346 (Fla. 5th DCA 1982) (“[The defendant] may very well be subject to the provisions of Florida’s long-arm statute, but in personam jurisdiction cannot be obtained over her by service by publication.”); Shannon v. Great S. Equip. Co., 326 So.2d 19, 20 (Fla. 2d DCA 1976) (“As noted, the original action against Shelter sounded In personam. If such an action is to be prosecuted against one on whom personal service cannot be effected it must be brought ‘quasi in rem’ and directed against property (which may include a debt owed) belonging to the defendant found in this state.”). Moreover, section 49.011 must be strictly construed against the party who seeks to obtain service under it. Huguenor, 420 So.2d at 346.

Here, the State concedes that it is proceeding in personam rather than in rem or quasi in rem. Thus, because the State never personally served Milanick, we are compelled to reverse.

REVERSED and REMANDED.

TORPY, C.J., and EVANDER, J„ concur.


author: CASANUEVA, Judge.

text:
    COLLIER COUNTY, a political subdivision of the State of Florida, Appellant, v. Francis D. HUSSEY, Jr., and Mary P. Hussey, husband and wife; Winchester Lakes Corporation; The Honorable Rick Scott, Governor of the State of Florida; and Florida Department of Economic Opportunity; Florida Wildlife Federation; and Collier County Audubon Society, Inc., Appellees.
    No. 2D13-5078.
    District Court of Appeal of Florida, Second District.
    June 27, 2014.
    Rehearing Denied Sept. 19, 2014.

      Theodore L. Tripp, Jr., and Jamie B. Schwinghamer of Hahn Loeser & Parks LLP, Fort Myers, for Appellant.
    John G. Vega of John G. Vega, P.A., Naples; and Margaret L. Cooper of Jones, Foster, Johnston & Stubbs, P.A., West Palm Beach, for Appellees Francis D. Hus-sey, Jr. and Mary P. Hussey.
    Thomas W. Reese, St. Petersburg, for Appellees, Florida Wildlife Federation and Collier County Audubon Society, Inc.
    No appearance for remaining Appellees.
   CASANUEVA, Judge.

Collier County seeks review of an order denying approval of a joint settlement agreement (Settlement Agreement). Approval of the Settlement Agreement was sought pursuant to the Bert J. Harris, Jr., Private Property Rights Protection Act, section 70.001, Florida Statutes (2008) (the Bert Harris Act), and the Settlement Agreement attempted to resolve alleged Bert Harris Act and regulatory taking claims. The trial court denied approval of the Settlement Agreement, finding it would contravene the application of laws and regulations without protecting the public interests served by such laws and regulations, including the Growth Policy Act and the Federal Endangered Species Act. We conclude the Bert Harris Act presuit settlement procedures were not available to the parties at the time they entered into the Settlement Agreement and thus affirm the trial court’s order denying approval as right for the wrong reasons. We write to address only the issue of timing and decline to address the remaining legal conclusions reached by the trial court.

Background

This matter arises from two consolidated actions in which property owners Francis D. Hussey, Jr., Mary P. Hussey, Winchester Lakes Corporation, Sean Hussey, Jr., Successor Trustee to Jose Lombillo, Trustee, and Eduardo Pereiro, Trustee (collectively “the Property Owners”) sued Collier County (“the County”), the Governor of Florida (in his official capacity), and the Florida Department of Community Affairs (now the Florida Department of Economic Opportunity), seeking damages in excess of $91,000,000 for alleged Bert Harris Act and regulatory taking claims. The Property Owners’ claims stem primarily from a 2002 amendment to Collier County’s Growth Management Plan referred to as the “Rural Fringe Amendment.” This amendment identified certain lands as either “sending lands” or “receiving lands” and imposed greater development and use restrictions on the sending lands based on the heightened environmental value and sensitivity of those lands. Collier Cnty., Fla., Ordinance No. 2002-32 (June 19, 2002). Pursuant to the amendment, approximately 1000 acres of undeveloped land owned by the Property Owners were designated “sending lands,” resulting in new restrictions on development and use.

The Property Owners presented a written notice of Bert Harris Act claim in 2004, and subsequently filed their consolidated lawsuits in 2008 alleging damages under the Bert Harris Act and inverse condemnation due to the Rural Fringe Amendment sending lands designation. The Florida Wildlife Federation and Collier County Audubon Society were permitted to intervene in the actions. After several amendments to the complaints, the lawsuits were dismissed with prejudice for failure to state a cause of action. The Property Owners appealed the dismissals. During the pendency of the appeals, the County and the Property Owners entered into a Settlement Agreement, dated February 12, 2018. The parties filed motions with this court seeking remand for the trial court to consider approval of the Settlement Agreement, pursuant to section 70.001(4)(d)(2), which requires court approval of a Bert Harris Act presuit settlement agreement when it would have the effect of contravening the application of a statute. This court treated the motions for remand as motions to relinquish jurisdiction and granted the motions.

The trial court summarized the remedies provided for in the Settlement Agreement as follows:

a. the designation of the northerly 578 acres of real property owned by Francis D. Hussey, Jr. and Mary P. Hussey (“Hussey Lands”) will be changed from Sending Lands to Receiving Lands;
b. the remainder of the Hussey Lands will remain designated as Sending Lands;
c. the designation of 578 acres of other real property, known as the “SR 846 Lands,” will be changed from Receiving Lands to Sending Lands;
d. within 180 days following the effective date of the Settlement Agreement, Francis D. Hussey, Jr. and Mary P. Hussey shall deed to Collier County 180 feet of right-of-way for the future Wilson Boulevard Extension;
e. to exchange 22.318 acres of road right-of-way for $55,795 of transportation impact fees;
f. to reduce the Collier Plan vegetation preservation requirements on [Property Owners’] North Belle Meade property;
g. to waive the current 25-year prohibition on transferred developmental rights being generated by the [Property Owners’] North Belle Meade property due to the [Property Owners’] recent land clearing activities;
h. to grant the [Property Owners] access to at least two locations to the future Wilson Boulevard Extension;
i. to waive the current native vegetation baseline date of June 19, 2002, for the vegetation on the [Property Owners’] North Belle Meade property; and
j.to grant the northern SR 846 Lands parcel the right to be developed as a Planned Unit Development (PUD).

The circuit court denied approval of the Settlement Agreement, concluding that it would, pursuant to the Bert Harris Act, result in contravening laws and regulations, but that it did not protect the public interest served by the contravened laws and regulations. As such, the court concluded the Settlement Agreement did not comply with the statutory standard set out in section 70.001(4)(d)(2).

We agree with the result of disapproving the Settlement Agreement, but because it clearly does not comply with the timeline provided for presuit settlement agreements set out in section 70.001(4).

Standard of Review

The interpretation of a statute is a question of law subject to de novo review. See Se. Floating Docks, Inc. v. Auto-Owners Ins. Co., 82 So.3d 73, 78 (Fla.2012). In Hill v. Davis, 70 So.3d 572, 575-76 (Fla. 2011), the supreme court sets out the following principles of statutory interpretation:

“Legislative intent guides statutory analysis, and to discern that intent we must look first to the language of the statute and its plain meaning.” In this regard, “legislative intent is determined primarily from the text” of the statute. This is because “the statute’s text is the most reliable and authoritative expression of the Legislature’s intent.” Courts are “without power to construe an unambiguous statute in a way which would extend, modify, or limit, its express terms or its reasonable and obvious implications. To do so would be an abrogation of legislative power.” “Thus, if the meaning of the statute is clear then this Court’s task goes no further than applying the plain language of the statute.”

(Citations omitted). Accordingly, our first task is to examine the statutory text at issue in this case.

Discussion

The Bert Harris Act establishes a cause of action providing relief, or payment of compensation, for real property owners when a new law, rule, regulation, or ordinance of the state or a political entity of the state, as applied, has inordinately burdened an existing use of real property or a vested right to a specific use of real property without amounting to a taking. § 70.001(l)-(2). The Act provides for a mandatory presuit procedure, set out in section 70.001(4), pursuant to which the property owner must present written notice of its Bert Harris Act claim to the relevant governmental entity not less than 180 days prior to filing a lawsuit under the Act.

During that 180-day period, unless extended by agreement of the parties, the governmental entity shall make a written settlement offer to effectuate the remedies enumerated in section 70.001(4)(c)(l)-(ll). For example, the governmental entity may offer an adjustment of land development or permit standards, modifications in density or use, transfer of developmental rights, land swaps, payments in lieu of onsite mitigation, location on the least sensitive portion of the property, issuance of a variance, and purchase of the real property by a governmental entity. § 70.001(4)(c) (listing the types of relief which may be included in a settlement offer and implemented by the governmental entity if the settlement offer is accepted).

If the governmental entity and property owner enter into a settlement agreement under section 70.001(4) which would have the effect of contravening the application of a statute that would otherwise apply to the subject property, the parties to the settlement agreement must file an action in the circuit court seeking approval of the settlement agreement “to ensure that the relief granted protects the public interest served by the statute at issue and is the appropriate relief necessary to prevent the governmental regulatory effort from inordinately burdening the real property.” § 70.001(4)(2). If the property owner rejects the settlement offer by the governmental entity, the owner may file a claim for compensation in the circuit court. § 70.001(5)(b).

In this case, the trial court rightly questioned whether it had jurisdiction to conduct a section 70.001(4)(d) review of the Settlement Agreement. However, the trial court improperly relied on Charlotte County Park of Commerce, LLC v. Charlotte County, 927 So.2d 236, 237 (Fla. 2d DCA 2006), to conclude it did have jurisdiction.

In Charlotte County Park of Commerce, the property owner had presented a Bert Harris Act claim notice but had not yet filed a lawsuit under the Act when the property owner and Charlotte County entered into a settlement agreement. The settlement agreement addressed several disputes between the county and property owner, including claims raised in a previously-filed lawsuit which did not include a Bert Harris Act claim for damages. Id. When the property owner sought a writ of mandamus compelling the county to comply with the section 70.001(4)(d)(2) approval procedures, the county argued that the settlement agreement did not and could not have settled the Bert Harris Act claim because the owner had not filed a lawsuit under the Bert Harris Act. The trial court agreed, and this court reversed, stating:

The trial court erred in concluding that CCPC did not have a Bert Harris claim that the parties could settle simply because it had not filed suit. Indeed, the Bert Harris Act contemplates the potential resolution of claims made against a governmental entity during the presuit period without resort to suit by the property owner. CCPC had made a Bert Harris claim; it simply had not filed an action with the court for relief under the Bert Harris Act.

Id. at 239. The case was remanded back to the trial court for a determination as to whether it was the parties’ intention that the settlement agreement resolve the Bert Harris Act claim. Id.

In the instant case, the trial court found that “it [was] clear that the parties [were] attempting to settle the claims pursuant to the Act” and thus proceeded to address the Agreement on the merits. This was error, as the Property Owners in the instant case had filed a lawsuit seeking compensation under the Bert Harris Act, and the Settlement Agreement was entered into a full four-and-a-half years later.

Though the trial court erred in determining it had jurisdiction to consider the merits of the Settlement Agreement under section 70.001(4)(d)(2), a review of the clear, unambiguous language of section 70.001(4) leads us to conclude that the denial of approval of the Agreement is nonetheless the correct result. The Bert Harris Act seeks to encourage settlement and, in fact, requires that the relevant governmental agency present the property owner with a settlement offer during the Act’s presuit period. § 70.001(4)(c). To further encourage such early settlement, the Act sets out available remedies which may result in contravening otherwise applicable regulations and statutes. § 70.001(4)(c). When a settlement agreement incorporates remedies that result in the contravention of a statute, the parties must obtain court approval of the settlement agreement through the procedure set out in section 70.001(4)(d)(2).

When the parties are unable to reach a settlement agreement, and after the ripeness prerequisite has been met, the property owner may “file a claim for compensation in the circuit court.” § 70.001(5)(b) (emphasis added). At the point of filing the circuit court action for compensation, the section 70.001(4)(c) presuit settlement negotiations have concluded, and the issue remaining pertains to whether the property owner is entitled to compensation and, if so, how much. While the parties may well choose to enter into settlement negotiations during the pendency of the compensation lawsuit, such negotiations do not take place pursuant to the section 70.001(4) presuit settlement procedures, including the procedure providing for contravention of statutes. See § 70.001(8) (“This section does not supplant methods agreed to by the parties and lawfully available for arbitration, mediation, or other forms of alternative dispute resolution, and governmental entities are encouraged to utilize such methods to augment or facilitate the processes and actions contemplated by this section.”).

The Bert Harris Act sets forth a specific timeline for providing notice of a claim, presentation of a settlement offer, and filing of a lawsuit for compensation. § 70.001(4)-(5). The timeline as to when a governmental entity shall make a written settlement offer to effectuate the available remedies set out in section 70.001(4)(c)(l)-(11) is clear and unambiguous, and courts are without power to construe this unambiguous statute in a way which would extend its express terms or its reasonable and obvious implications. Hill, 70 So.3d at 575; Holly v. Auld, 450 So.2d 217, 219 (Fla.1984). To do so would be contrary to the intent of the legislature to encourage early settlement of Bert Harris Act claims.

Conclusion

As the Settlement Agreement at issue in this case does not comply with the clear and unambiguous presuit settlement time-line set forth in section 70.001(4), and as the trial court was constrained from extending the availability of section 70.001(4) presuit settlements, the trial court was without jurisdiction to review and approve the Settlement Agreement pursuant to section 70.001(4)(d)(2). The order denying approval is therefore right for the wrong reasons, and we affirm.

Affirmed.

NORTHCUTT and KELLY, JJ., Concur.

      . As the lawsuit which the parties sought to settle was filed in September 2008, we will refer to the 2008 version of the Bert Harris Act for purposes of this appeal. Though amendments were made to the Act after the filing of the lawsuit but prior to the date of the Settlement Agreement, including a reduction of the presuit period identified in section 70.001(4) from 180 days to 150 days, these amendments are not material to the resolution of this case. Accordingly, whether the 2008 or later version of the Act is applied, our analysis and result remain the same.

      . Ch. 163, Fla. Stat. (2013).

      . 7 U.S.C. § 136, 16 U.S.C. § 1531 et seq. (2013).

        .Hussey v. Collier Cnty., No. 2D 11-1223 (Fla. 2d DCA filed Mar. 11, 2011), and Hussey v. Collier Cnty., 2D11-1224 (Fla. 2d DCA filed Mar. 11, 2011).

      . Amendments made to the Bert Harris Act, effective July 1, 2011, reduced the presuit period identified in section 70.001(4) from 180 days to 150 days. For property classified as agricultural, the notice period is 90 days. § 70.001(4)(a).

      . Section 70.001(5) includes an additional "ripeness decision” prerequisite to filing a lawsuit for compensation.

      . See Dade Cnty. Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 645 (Fla. 1999) (‘‘[I]f a trial court reaches the right result, but for the wrong reasons, it will be Upheld if there is any basis which would support the judgment in the record.”); Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979) ("Even when based on erroneous reasoning, a conclusion or decision of a trial court will generally be affirmed if the evidence or an alternative theory supports it.”).


author: KELLY, Judge.

text:
    Dennis James SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-61.
    District Court of Appeal of Florida, Second District.
    July 2, 2014.
    Rehearing Denied Aug. 12, 2014.
    Howard L. Dimmig, II, Public Defender, and Richard P. Albertine, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Donna S. Koch, Assistant Attorney General, Tampa, for Appellee.
   KELLY, Judge.

Dennis James Smith appeals from his judgment and sentence for several offenses following the revocation of his probation. We affirm the order revoking Smith’s probation without further comment. However, we remand for the entry of an amended revocation order.

While this appeal was pending, Smith filed a motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). The trial court granted this motion and reduced Smith’s sentence for attempted first-degree murder (count I), armed burglary of a dwelling (count II), and robbery with a deadly weapon (count III) from 194.025 months to 172 months’ imprisonment with credit for time served. Although an amended judgment and sentence was entered, no amended revocation order appears in the record. We therefore remand with directions to the trial court to enter an amended order of revocation accurately reflecting Smith’s corrected sentence.

Affirmed; remanded with directions.

LaROSE and KHOUZAM, JJ., Concur.


author: WELLS, Judge. ROTHENBERG, J.

text:
    R.J. REYNOLDS TOBACCO CO., Philip Morris USA Inc., and Lorillard Tobacco Company, Appellants, v. Lesia MOONEY, Individually, and as Personal Representative of the Estate of Barbara June Meacham, et al., Appellees.
    No. 3D13-1176.
    District Court of Appeal of Florida, Third District.
    July 2, 2014.
    Rehearing Denied Sept. 24, 2014.
    Boise, Schiller & Flexner LLP, and Mark J. Heise, Andrew S. Brenner, and Stephen N. Zack and Lawrence V. Ashe, Miami; Arnold & Porter LLP, and Geoffrey J. Michael, Washington, DC, for appellant Philip Morris USA Inc.; Carlton Fields, and Benjamine Reid and Olga M. Vieira, Miami; Jones Day, and Charles R.A. Morse, New York, NY, for appellant R.J. Reynolds Tobacco Company; Green-berg Traurig, P.A., and Elliot H. Scherker, Julissa Rodriguez, Miami, and David 0. Batista, Fort Lauderdale, for appellant Lorillard Tobacco Company.
    The Ferraro Law Firm, and David J. Finger, Miami, and Allan B. Kaiser, for appellees.
    Before WELLS, ROTHENBERG, and EMAS, JJ.
   WELLS, Judge.

R.J. Reynolds Tobacco Company, Philip Morris USA Inc., and Lorillard Tobacco Company (collectively, “the defendants”), appeal a trial court’s denial of their motion to transfer venue. Because we find no abuse of discretion in the trial court’s ruling, we affirm.

Engle plaintiff-appellee, Lesia Mooney (“Mooney”), seeks monetary damages for the wrongful death of her mother, Barbara Meacham (“the decedent”),' allegedly caused by smoking-related injuries resulting from the use of the defendants’ products. Mooney initially filed her wrongful death action against the defendants, as well as Vector Group, Ltd. (“Vector”), as part of a consolidated complaint with fifteen joint plaintiffs in 2008. The case was initially filed in The Eleventh Judicial Circuit for Miami-Dade County (“Miami-Dade Court”) because Vector maintains its headquarters in Miami-Dade County. The parties all mutually agreed to delay the case for two years and then the parties began conducting discovery after the case was reactivated in 2010. In December 2011, Mooney severed her action from the joint complaint and filed an individual complaint against the defendants, dropping Vector from the complaint. None of the remaining defendants is headquartered in Miami-Dade County. The defendants took Mooney’s deposition and, shortly thereafter, in December 2012, filed a motion to transfer venue pursuant to section 47.122 of the Florida Statutes (2012).

The defendant tobacco companies do not dispute that venue was proper when Mooney originally filed her consolidated action against them and Vector in the Miami-Dade Court. Nor have they at any time argued that venue was not proper in the court below after Mooney severed her action and dropped Vector as a party defendant. Indeed, this court has previously found that “if — as was obviously and con-cededly the case here — a local or resident defendant is made a party in good faith at the outset of the litigation, his subsequent voluntary (or involuntary) dismissal does not affect the propriety of the initial venue so as to require that the action be transferred .... ” Vance, M.D. v. Minton, 444 So.2d 1162, 1163 (Fla. 3d DCA 1984). The defendant tobacco companies have, therefore, moved to transfer venue to Duval County under section 47.122, claiming that it is “[fjor the convenience of the parties or witnesses or in the interest of justice,” to transfer this action to Duval County where this action might also have been brought.

As this court has already confirmed, a “plaintiffs forum selection is presumptively correct, and in order to successfully challenge that selection, the burden is upon the defendant to show either substantial inconvenience or that undue expense requires a change for the convenience of the parties or witnesses.” Gov’t Emps. Ins. Co. v. Burns, 672 So.2d 834, 835 (Fla. 3d DCA 1996) (emphasis added); see also Safety Nat’l Cas. Corp. v. Fla. Mun. Ins. Trust, 818 So.2d 612, 613 (Fla. 5th DCA 2002) (same). This requires the defendant to come forward with record evidence to support a transfer. Bums, 672 So.2d at 835. In this case, that burden has not been met.

As to the convenience of the parties, the tobacco company defendants have made no argument that it would be inconvenient in any manner for them to try this matter in Miami-Dade County. Instead, they have latched upon Mooney’s two word response to a question at her deposition that “[ojbviously, yes” it would be more convenient for her if the case were filed in Duval County because she lives in Jacksonville. This response does not demonstrate that it would be substantially inconvenient for her to travel to Miami-Dade County on occasion prior to, and for, trial, especially in light of her testimony that despite any inconvenience she might incur, she preferred having the case heard in Miami-Dade County. There is no testimony that keeping the action here would be unduly expensive for her.

As to the convenience of any witnesses, the tobacco company defendants have not identified a single defense witness who would be inconvenienced by keeping this case in Miami-Dade County. Rather, they rely solely upon a response to a written interrogatory asking Mooney to identify those whom might have knowledge of the issues raised in the instant suit:

State the name and address of all persons who are believed or known by you, your agents, or your attorneys to have any knowledge concerning any of the issues in this lawsuit; and specify the subject matter about which the witness has knowledge.

In her response, Mooney provided the names and addresses of four individuals, three of whom lived in Jacksonville who might have knowledge of decedent’s “smoking history and smoking related illness.” While such individuals, may prove to have relevant knowledge concerning issues in this lawsuit, there is no evidence that any of these individuals actually has relevant information, will be deposed, or will be called as a witness at trial. Indeed, it may very well be that, as is often the case, the decedent’s extended family members will have little relevant knowledge given the fact that they resided in a city different than the decedent and simply do not have sufficient knowledge of the decedent’s daily habits or physical condition to testify. There is also no suggestion, much less evidence, that any of these individuals would refuse or be ' unable to come to Miami-Dade County when needed to participate in these proceedings — that is, there is no evidence that being a witness here is at all inconvenient to these individuals.

Moreover, the uncontradicted evidence also is that the potential witness with the most knowledge of decedent’s smoking history and smoking related illnesses — decedent’s surviving spouse — lived in Tallahassee with the decedent until decedent’s death and now lives in Georgia. As was the case with the other individuals listed in Mooney’s interrogatory response, the tobacco company defendants have made no showing of substantial inconvenience or undue expense as to this most significant witness and Georgia resident in having this case tried in Miami-Dade County.

The same can be said of any treating physician or expert witnesses. As is often the case, the treating physicians may require that their trial testimony be presented by deposition so as not to interfere with their treatment of patients. And no expert witnesses, local or otherwise, have been identified. Thus, whether any witness will be inconvenienced or not cannot, as the trial court noted, be determined until further discovery takes place. R.C. Storage One, Inc. v. Strand Realty, Inc., 714 So.2d 634, 636 (Fla. 4th DCA 1998) (“While this court might be tempted to look at the complaint and make our own assumptions about what the evidence will be and how important certain witnesses’ testimony will be to the trial of this case, we decline to do so. Indeed, certain listed ‘witnesses’ may have information relevant only to uncontested matters, and it may be unnecessary for them to attend the trial or have any significant involvement in the litigation.”). We therefore cannot conclude that the trial court abused its discretion in denying the tobacco company defendants’ motion to transfer given the scant record evidence submitted in support of a transfer. Id. at 635 (“The affidavits in support of R.C.’s motion to transfer venue were little more than a laundry list of witnesses, their places of residence and the conclusory statement that it would be inconvenient for them to travel to Palm Beach County. The affidavits failed to disclose any information as to the necessity, relevance or significance of the evidence to be presented by these witnesses.”).

Nor can we agree with any argument that it is incumbent to grant the motion to transfer venue now in order to prevent Mooney from “hav[ing][her] cake and eatfing] it too” by asking for more time to determine where witnesses reside while simultaneously arguing that a transfer becomes less fair with the passage of time. To use another popular idiomatic expression, such a claim would put the “cart before the horse” by prematurely ruling on a venue motion in order to prevent Mooney from making some argument that she might make at some point in the future, for the law requires the production of evidence, not speculation, before a court may “properly weigh the convenience of all of the key witnesses under section 47.122” so as to grant a venue transfer. Brown & Williamson Tobacco Corp. v. Young, 690 So.2d 1377,1379 (Fla. 1st DCA 1997) (“[I]n order for a court to consider the convenience of the witnesses, the court must know who the witnesses are and the significance of their testimony.” (quoting Hu v. Crockett, 426 So.2d 1275, 1279 (Fla. 1st DCA 1983))).

As to the interests of justice, transfer to Duval County because: (1) “neither party has shown that Duval County would result in a later trial date”; (2) the First District may still have a case management order in place to handle tobacco litigation; and (3) “[a]ny argument that a transfer of venue to Duval County would unduly prejudice Mooney due to the expediency of the court systems is pure speculation at best,” ironically, would result in a reversal not because of any speculation by Mooney or the court below, but would require this court’s own unsupported conjecture.

There is no record evidence as to a case management order to handle tobacco litigation in Duval or Miami-Dade Counties, much less the state of the dockets in either county. And to the extent that this is even a valid consideration, this court has previously cautioned that the court’s concerns about preserving judicial resources does not, by itself, constitute a valid reason for disturbing the plaintiffs forum choice:

The trial court’s discretion to transfer under Section 47.122 is not unbridled and must be predicated upon a showing that the parties or witnesses will suffer substantial inconvenience or undue expense due to the chosen forum. Ashland Oil, Inc. v. Florida Dept. of Transp., 352 So.2d 567 (Fla. 2d DCA 1977). As noted in Ashland, 352 So.2d at 569: “No decision has come to our attention which approves the convenience of the courts as the sole basis for change of venue that is otherwise properly selected by the plaintiff. We are not inclined, nor do we believe the legislature intended, to extend statutory forum of convenience to such considerations.”
A trial court does not have the authority to disturb the plaintiffs choice of proper forum based upon considerations of its own convenience. Ashland, 352 So.2d at 569. We recognize the trial court’s concerns in attempting to control its docket and to preserve judicial resources. However, these concerns do not constitute a valid reason for transfer. A trial court should not be allowed to assume an adversarial role on the issue of convenience.

Bums, 672 So.2d at 836.

For this reason we also cannot so easily reject Mooney’s contention that trying this case in Miami-Dade County would be more expeditious. Absent evidence demonstrating that this matter may be more expeditiously heard in Duval County, the tobacco company defendants' burden of showing entitlement to a venue transfer was not met. Id. at 835.

We also cannot agree with any conclusion that plaintiffs should not be able to select an attorney or expert witnesses in a county and maintain suit there simply because they see some procedural advantage or because juries in the chosen forum tend to award larger monetary damages. There is nothing improper in choosing a venue because it is the most advantageous venue procedurally, or otherwise, for the law itself recognizes a plaintiffs privilege in initially selecting a venue irrespective of reason. If, therefore, venue is proper in more than one place, a plaintiff has the privilege of selecting which venue is most favorable to it for any reason and that selection will not be disturbed absent evidence that the chosen venue is either not proper in the place selected or substantially inconvenient to the witnesses or parties. Id.; see also Barry Cook Ford, Inc. v. Ford Motor Co., 571 So.2d 61, 61 (Fla. 1st DCA 1990) (“While the primary purpose of venue statutes is to require litigation to be instituted in the forum which will cause the least amount of inconvenience and expense to those parties required to answer and defend the action, it is the prerogative of the plaintiff to select the venue and as long as that selection is one of the alternatives provided by statute, the plaintiffs selection will not be disturbed.”). We do not believe that defendants, such as those in this case, should be permitted to object to a properly selected forum simply because they see some procedural advantage or the ability to limit a jury award.

There is no question that venue was proper in Miami-Dade County when this action was filed. Now that the only local defendant has been dropped from the case, Mooney wishes to continue her case here, first, because it is no more inconvenient for her to have the case heard here than in Duval County; second, because none of the witnesses whom she has identified as potential witnesses has been proved to be inconvenienced by this decision; third, because the tobacco company defendants do not claim that they are in any manner inconvenienced; and lastly, because the lawyer who is intimately familiar with her case will be substantially inconvenienced— to say nothing of the costs that must be incurred — in travelling back and forth to Duval County to try this case. While we agree that the location of the lawyer’s office is generally not relevant to this inquiry, the unique circumstances of this case present an instance where it cannot be said that the trial court abused its discretion in concluding that the interests of justice would better be served if the case were to stay in Miami-Dade County.

For these reasons, we find no abuse of discretion in the trial court’s decision to deny the motion to transfer venue and affirm.

EMAS, J., concurs.

ROTHENBERG, J.

(dissenting).

This appeal comes to us upon the trial court’s denial of a motion to transfer venue filed jointly by R.J. Reynolds Tobacco Company, Philip Morris USA Inc., and Lorillard Tobacco Company (collectively, “the defendants”). Because this case has absolutely no connection to Miami-Dade County, the trial court abused its discretion in denying the motion. Accordingly, I would reverse the trial court’s denial of the defendant’s motion to transfer venue to Duvall County, and I respectfully issue this dissent.

BACKGROUND

This is an Engle-progeny case in which the plaintiff — appellee, Lesia Mooney (“Mooney”), seeks monetary damages for the wrongful death of her mother, Barbara Meacham (“the decedent”), allegedly caused by smoking-related injuries resulting from the use of the defendants’ products. Mooney initially filed her wrongful death action against the defendants, as well as Vector Group, Ltd. (“Vector”), as part of a consolidated complaint with fifteen joint plaintiffs in 2008. The case was initially filed in The Eleventh Judicial Circuit for Miami-Dade County (“Miami-Dade Court”) because Vector maintains its headquarters in Miami-Dade County. The parties all mutually agreed to delay the case for two years, and then the parties began conducting discovery after the case was reactivated in 2010. In December 2011, Mooney severed her action from the joint complaint and filed an individual complaint against the defendants, dropping Vector from the complaint. None of the remaining defendants are headquartered in Miami-Dade County. The defendants took Mooney’s deposition and, shortly thereafter, in December 2012, filed a motion to transfer venue pursuant to section 47.122, Florida Statutes (2012).

The defendants established the following facts in support of their motion to transfer: Mooney currently resides in Duval County; the decedent resided in Duval County for twenty years and has never resided in Miami-Dade County; the decedent was diagnosed with, treated for, and died of lung cancer in Duval County; the decedent’s treating physicians reside in Duval County; the decedent’s husband, who Mooney has admitted will “undoubtedly testify at trial,” resided in Duval County until the decedent’s death and currently resides in Georgia; all but one of the decedent’s family members reside in Duval County; and Mooney identified only three witnesses in her response to defendants’ interrogatories that may have personal knowledge of the facts surrounding the decedent’s death, all of which reside in Duval County. There are no current or potential witnesses listed by either side who live in Miami-Dade County. Mooney’s only proffered connection to Miami-Dade County is her attorney, who resides and practices in Miami-Dade County.

Mooney argued below that a plaintiffs choice of forum is given a strong presumption of correctness, a transfer of venue ruling would be premature because the parties do not know which witnesses will testify or where the expert witnesses reside, and the case has been pending for too long and will be more expeditiously resolved in Miami-Dade. The trial court denied the defendants’ transfer of venue motion based largely on deference to the plaintiffs selection of forum and the premature nature of discovery. This appeal followed.

DISCUSSION

A trial court’s ruling on a motion for transfer of venue is reviewed for an abuse of discretion, Burger King Corp. v. Koeppel 564 So.2d 209, 210 (Fla. 3d DCA 1990), but “the discretion of the [trial] court is not unbridled and must be predicated upon a proper showing of convenience or interest of justice.” Taylor v. Dasilva, 401 So.2d 1161,1163 (Fla. 3d DCA 1981). Section 47.122 provides: “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.” Section 47.122 itself, as well as our case law interpreting the statute, espouses three distinct factors to consider when determining whether a transfer of venue is proper: (1) the convenience of the parties; (2) the convenience of the witnesses; and (3) the interest of justice. A trial court may transfer venue if any of these three factors weigh in favor of the alternate forum. See § 47.122 (using the word “or” to refer to the three factors in the disjunctive). In this case, all three factors weigh in favor of transferring venue to Duval County. Thus, the trial court abused its discretion by denying the motion to transfer.

I. The convenience of the parties

A plaintiffs choice of venue is given a presumption of correctness, but it is not a “paramount consideration” that cannot be overcome. Hu v. Crockett, 426 So.2d 1275, 1278 (Fla. 1st DCA 1983). The circumstances surrounding a plaintiffs choice of forum are relevant to the level of deference afforded:

The propriety of the plaintiffs choice of forum is further bolstered in cases ... wherein the plaintiff seeks to litigate a suit in his home community. Similarly, if the evidence suggests that a plaintiff has without good reason purposefully avoided litigating a suit on his “home turf,” the weight accorded his forum selection is weakened.

Id. at 1279 (citation omitted). Furthermore, transfer of venue can be ordered based on convenience to a plaintiff even if that plaintiff opposes transfer. See Burger King, 564 So.2d at 210 (reversing the trial court’s denial of a motion to transfer venue when a different venue was more convenient to the witnesses and the plaintiff, who opposed the motion).

The facts in this case illustrate precisely the reason a plaintiffs forum choice should not ultimately control. Mooney and nearly all of her family are Duval County residents. The decedent lived in Duval County for over twenty years, was diagnosed in Duval County, and was treated in Duval County until her death in 1993. In fact, Mooney admitted at her deposition that Duval County would be a more convenient venue for the litigation. Mooney’s only explanation for why she prefers Miami-Dade County to Duval County is the speculative notion that a trial in Miami-Dade would be more expeditious, which has never been established, and the convenience to her attorney.

In a series of deposition questions regarding the propriety of Miami-Dade as a venue, Mooney responded:

Q: Okay. Now is there a reason that you’re aware of outside of speaking with your attorneys as to why this lawsuit was filed in Miami-Dade County?
A: Not to my knowledge, no.
Q: Okay. Is there a reason why you did not file this lawsuit in Jacksonville [Duval County]?
A: Not any particular reason, no, not that I know of.
Q: Would it be more convenient for you if this case were filed in [Duval County] where you attended jury duty?
A: Obviously, yes. However, I don’t want — I mean, it has started here, so I would prefer that it continue.
Q: And why is that?
A: Just because I feel like it might be more expeditious.
Q: Do you know if that’s actually the case?
A: No, I don’t know. That is just my assumption....

(emphasis added). Mooney’s testimony underscores the notion that a plaintiffs choice of venue should be afforded less deference when that plaintiff seeks to litigate away from her “home turf’ for an unexplained reason. It is clear from the record, and Mooney admits, that Duval County would be a more convenient place to litigate this matter.

There is no dispute that venue was proper in Miami-Dade County when the consolidated multi-plaintiff lawsuit was filed. There is also no dispute that, because venue was proper when the consolidated lawsuit was filed, by severing her lawsuit from the consolidated lawsuit, the propriety of the prior venue determination remains undisturbed. Thus, there is no requirement that venue be transferred in this case despite the fact there is absolutely no connection to Miami-Dade County. However, the fact that venue may be exercised in Miami-Dade County does not answer the question of whether transfer to Duval County should have been granted. This severed lawsuit has absolutely no connection to Miami-Dade County. As already noted, the deceased never resided in Miami-Dade County, Mooney does not reside in Dade County, and none of the witnesses or defendants are located in Miami-Dade County. Although Vector, one of the original defendants, had a connection to Miami-Dade County, Vector was omitted as a defendant when Mooney severed her action from the consolidated multi-plaintiff case and filed the current complaint. Under these circumstances, the trial court should have examined only the most recently amended complaint, including added or dropped parties, when it determined the convenience of the parties. See Tompkins v. Acadia Partners, L.P., 702 So.2d 1340, 1341 (Fla. 5th DCA 1997) (finding that the trial court should have “considered] the most current complaint in order to determine whether such complaint could have been filed in a particular county when the original action was filed.”).

In this case, none of the parties remaining in this suit has any connection whatsoever to Miami-Dade County. The only justification for proper venue when the suit was initiated was the fact that one of the original defendants, Vector, had a home office in Miami. Vector, however, has long since been dropped from this suit. When considering the complaint in its current iteration, it is unlikely that venue in Miami-Dade County would have even been permissible. See §§ 47.011, 47.021, 47.051, Fla. Stat. (2012) (combining to prescribe where venue is proper at the time of filing). Based on these considerations, one can hardly conclude that Miami-Dade County is the proper venue for the convenience of the parties. As such, the convenience of the parties weighs in favor of transfer.

II. The convenience of the witnesses

“The convenience of the witnesses is probably the single most important consideration of the three statutory factord.” Hu, 426 So.2d at 1279. In determining the ultimate convenience to the witnesses, the trial court should consider the number of' witnesses who will testify as well as the relative significance of each witness’s testimony. See Ford Motor Co. v. James, 33 So.3d 91, 93 (Fla. 4th DCA 2010); Hu, 426 So.2d at 1279. Where witnesses have been identified in two potential forums, the trial court has great discretion in determining that one is more convenient than the other, but when the chosen forum contains no discernible witnesses, that discretion is substantially limited. Compare Hu, 426 So.2d at 1279-81 (finding that the trial court did not abuse its discretion when witnesses resided in various potential forums) with Hall v. R.J. Reynolds Tobacco Co., 118 So.3d 847, 848 (Fla. 3d DCA 2013) and Brown & Williamson Tobacco Corp. v. Widdick, 717 So.2d 572, 573-74 (Fla. 1st DCA 1998) (both finding that venue was improper in a forum where no witnesses reside).

In this case, the fact witnesses identified by the parties all reside in or near Duval County or in Georgia. Mooney and all of the decedent’s family members, except the decedent’s husband, who lives in Georgia, reside in the Duval County area and could more conveniently respond to discovery requests and appear and/or testify at trial in a Duval County court. Furthermore, all of the decedent’s treating physicians reside in either Duval County or the Tallahassee area — none reside or practice in Miami-Dade County. It is clear from this record that the convenience of the witnesses weighs in favor of a transfer to Duval County.

Mooney argues that ordering a transfer to Duval County would be premature because the parties have not yet identified all witnesses who will testify, including expert witnesses. This argument is unavailing for several reasons. First, convenience to expert witnesses is of minimal importance. See Pep Boys v. Montilla, 62 So.3d 1162, 1166 (Fla. 4th DCA 2011) (disagreeing “that the convenience of the expert witnesses is of utmost importance” because “[i]t goes without saying that most expert witnesses travel for their work and are paid for doing so”); see also Mankowitz v. Staub, 553 So.2d 1299, 1300 (Fla. 3d DCA 1989) (“The fact that certain expert witnesses and treating physicians reside in Dade County is not sufficient to defeat Monroe County venue.”); but see Brown & Williamson Tobacco Corp. v. Young, 690 So.2d 1377, 1379-80 (Fla. 1st DCA 1997) (finding that expert witnesses were critical in tobacco cases).

While Mooney contends that the significance of the identified family members’ and treating physicians’ testimony is unknown, plaintiffs in tobacco cases almost always rely on such witnesses to testify about the nature of the injuries and the appropriate damages. Additionally, Mooney has never contended that there is even a possibility that further discovery will reveal a fact witness in Miami-Dade County. Finally, while we recognize that in many situations the trial court should wait until discovery has yielded a more extensive inventory of testifying witnesses, see Hu, 426 So.2d at 1279-80 (“In order for a court to consider the convenience of the witnesses, the court must know who the witnesses are and the significance of their testimony”), allowing Mooney to postpone the transfer of venue in this case would only result in the further passage of time and result in a greater likelihood that a subsequent motion to transfer venue would be denied simply due to an impending trial date.

Mooney argued persuasively at the hearing on the motion to transfer venue that the case has been languishing too long and that a transfer would be inappropriate because she would again have to wait in Duval County for an open docket spot. At the same time, she argued that the parties need more time to determine which witnesses will testify and how relevant their testimony will be. Allowing the case to stay in Miami-Dade County until moré discovery has taken place will necessarily strengthen the plaintiffs argument that the case should remain in Miami-Dade County for expediency reasons. We cannot permit a litigant to “have their cake and eat it too” by asking for more time to determine where the witnesses reside while simultaneously arguing that a transfer becomes less fair with the passage of time. Where it is clear that further discovery will yield no fact witnesses in the chosen forum, the trial court should not delay its ruling on a motion to transfer.

III. The interest of justice

The final statutory factor is the catch-all provision advising courts to weigh the interest of justice. This factor is susceptible to many considerations, but ultimately hinges on the overall fairness of the chosen and alternative forums considering the totality of the litigation. See Pep Boys, 62 So.3d at 1165 (“The third factor, that of the interest of justice, is a catch-all consideration including many considerations, and in some close cases this factor may be determinative.” (quoting Hu, 426 So.2d at 1280)). The interest of justice clearly weighs in favor of transferring this case to Duval County. It is readily apparent when viewing this case in total that it is not a Miami-Dade County case. All discernible connections are to Duval County, and the only connection to Miami-Dade County is Mooney’s attorney.

In Westchester Fire Insurance Co. v. Fireman’s Fund Insurance Co., 673 So.2d 958, 959 (Fla. 3d DCA 1996), this Court stated in no uncertain terms:

Our district should not be a forum for cases that have little or no connection to Dade and Monroe counties. Therefore, it is the stated policy of our Court to literally apply the doctrine of forum non-conveniens where there is little else other than the plaintiffs choice of venue and where witnesses reside in other more suitable venues,

(emphasis added). Applying the Westchester policy in Hall v. R.J. Reynolds, 118 So.3d at 848 n. 3, this Court found that the trial court had properly granted the defendant tobacco companies’ motion for transfer under nearly identical circumstances by directly holding that the plaintiffs attorney’s location is not a relevant connection to the forum. Similarly, the First District has held that the trial court abused its discretion in failing to grant the appellant tobacco company’s motion to transfer on incredibly similar facts when the only reason to keep the case in the chosen forum was the plaintiffs initial filing decision and the location of the plaintiffs attorney. Widdick, 717 So.2d at 573-74.

Mooney also argues that trial in Miami-Dade County would be more expeditious, and it must remain here because it would be unfair for her case to continue languishing on the trial docket. First, while Mooney has many times argued that the case has been pending for five years, the procedural posture and the mutual decision to pause litigation illuminates that the case has actually been active for just over a year. Further, the defendants in this case have done nothing to prolong litigation and, in fact, filed their transfer motion shortly after deposing Mooney. Perhaps more importantly, neither party has shown that Duval County would result in a later trial date. To the contrary, in Young, the First District explicitly found, albeit in a fifteen-year-old decision, that Duval County has a case management order in place to efficiently handle tobacco litigation. Any argument that a transfer of venue to Duval County would unduly prejudice Mooney due to the expediency of the court systems is pure speculation at best.

Finally, the interest of justice dictates that this case be transferred to Duval County because plaintiffs should not be able to select an attorney or expert witnesses in a county and maintain suit there simply because they envision some procedural advantage or because juries in the chosen forum tend to award larger monetary damages awards. Plaintiffs cannot defeat transfer to a more convenient forum by their own deliberate actions. Resolution Trust Corp. v. Diaz, 578 So.2d 40, 41 (Fla. 4th DCA 1991) (per curiam) (“The power to defeat a transfer to a convenient forum should derive from rights and privileges conferred by law, not from the deliberate conduct of a party favoring trial in an inconvenient forum.”). Such proscribed deliberate actions include hiring an attorney or expert witnesses in a specific forum to which the plaintiff has no other relevant connection to bolster the convenience of litigating in that forum. Allowing a party to maintain suit based on the location of his or her attorney and expert witnesses, especially when all identified connections are to another forum, would simply open the doors of the Miami-Dade County courts to cases with no connection to the area. I would decline to do so.

CONCLUSION

The cause of action before us has no connection to Miami-Dade County. The plaintiff is from Duval County; all listed witnesses are from Duval County or Georgia; the plaintiff has admitted that Duval County would be a more convenient forum; there is no evidence that the plaintiff will be prejudiced by transferring the case to Duval County; and none of the remaining defendants have a particular connection with Miami-Dade County. Simply put, this is not a Miami-Dade County case. Rather, to quote one of our recent decisions, Mooney’s case “is a[ ] [Duval] County case which belongs in [Duval] County.” Hall, 118 So.3d at 848. Allowing the cause of action to remain in Miami-Dade County by denying a proper motion for transfer of venue, as the trial court did, simply opens the Miami-Dade County venue for a flood of tobacco litigation with no connections to the area.

Allowing discovery to continue and postponing the ruling on the transfer of venue motion is similarly problematic in this case because Mooney has essentially conceded that further discovery will not yield any fact witnesses or evidence in Miami-Dade County. If we endorse Mooney’s position, plaintiffs could simply delay the transfer of an unrelated case until they have gotten so close to the trial date that a transfer would be impractical. Miami-Dade cases should remain in Miami-Dade. Duval County cases, however, should be tried in the Du-val County courts. This case has no connection whatsoever to Miami-Dade County, and the trial court abused its discretion in denying the defendants’ motion to transfer.

      . Engle v. Liggett Group, Inc., 945 So.2d 1246 (Fla.2006)

      . Until the decedent became ill shortly before her death, she resided in Tallahassee in Leon, not Duval, County.

      . At the hearing below, it was suggested that this case may come down to a so-called battle of the expert witnesses. To the extent that the experts’ convenience ultimately proves to be of minimal importance because they are accustomed to travel and are paid for doing so, this again would be a factor weighing in favor of a finding that the trial court did not abuse its discretion in denying the motion to transfer venue. In that case, the tobacco company defendants would again not have met their burden of demonstrating that Duval County was any more convenient a venue than Miami-Dade County.

      . In Engle v. Liggett Group, Inc., 945 So.2d 1246 (Fla.2006), the Florida Supreme Court decertified a nationwide class of plaintiffs alleging smoking-related injuries, but held that a smaller class of Florida plaintiffs could file individual actions and rely on the findings of fact common to the class members’ claims that were determined by the jury in Engle. The common findings of fact included that the defendant tobacco companies are guilty as co-conspirators for the fraudulent concealment of material information concerning the health effects or addictive nature of cigarettes.

      . At the hearing, the trial court stated, “I do think a person gets to choose and even though Mrs. Mooney said yes, it’s probably more convenient in Duval County, she'd like to stay where the case was filed and based upon what I have before me, based [upon] the motion, I'm going to deny the motion for transfer [of] venue.”


text:
    Archie James HINES, Appellant, v. STATE of Florida, Appellee.
    No. 2D14-165.
    District Court of Appeal of Florida, Second District.
    July 2, 2014.
    Archie James Hines, pro se.
   PER CURIAM.

Affirmed. See Melvin v. State, 645 So.2d 448 (Fla.1994); State v. Waters, 436 So.2d 66 (Fla.1983); Henry v. State, 933 So.2d 28 (Fla. 2d DCA 2006).

KHOUZAM, MORRIS, and SLEET, JJ., Concur.


text:
    Bernard McCLOUD, Appellant, v. STATE of Florida, Appellee.
    No. 2D14-383.
    District Court of Appeal of Florida, Second District.
    July 2, 2014.
    Bernard McCloud, pro se.
   PER CURIAM.

Affirmed. See Art. X, § 9, Fla. Const.; Castle v. State, 330 So.2d 10 (Fla.1976); State v. Battle, 661 So.2d 38 (Fla. 2d DCA 1995); Wright v. State, 637 So.2d 356 (Fla. 1st DCA 1994).

KHOUZAM, MORRIS, and SLEET, JJ., Concur.