Davidson v. Green

• Decision Date: 25 January 1979
• Docket Number: No. LL-467,LL-467
• Citation: 367 So.2d 1032
• Parties: I. Irving DAVIDSON, Appellant, v. Hyman GREEN, Irving Green, National Development Corporation, a Delaware Corporation, Honeymoon Isle Development Corporation, a dissolved Florida Corporation, the Trustees of the Central States Southeast and Southwest Areas Pension Fund, an unincorporated association, Reubin O'D. Askew, Governor, Jesse McCrary, Secretary of State, Robert L. Shevin, Attorney General, Gerald Lewis, Comptroller, Ralph Turlington, Commissioner of Education, Doyle Conner, Commissioner of Agriculture, William Gunter, Treasurer, as and constituting the Board of Natural Resources, and as and constituting Trustees of the State of Florida Land Acquisition Trust Fund and Internal Improvement Trust Fund, Harmon Shields, Director of the State of Florida Department of Natural Resources, Kenneth C. Levine, Trustee, Leonard L. Bursten, Trustee, Appellees.
• Court: Florida District Court of Appeals

Page 1032

367 So.2d 1032

I. Irving DAVIDSON, Appellant, v. Hyman GREEN, Irving Green, National Development Corporation, a Delaware Corporation, Honeymoon Isle Development Corporation, a dissolved Florida Corporation, the Trustees of the Central States Southeast and Southwest Areas Pension Fund, an unincorporated association, Reubin O'D. Askew, Governor, Jesse McCrary, Secretary of State, Robert L. Shevin, Attorney General, Gerald Lewis, Comptroller, Ralph Turlington, Commissioner of Education, Doyle Conner, Commissioner of Agriculture, William Gunter, Treasurer, as and constituting the Board of Natural Resources, and as and constituting Trustees of the State of Florida Land Acquisition Trust Fund and Internal Improvement Trust Fund, Harmon Shields, Director of the State of Florida Department of Natural Resources, Kenneth C. Levine, Trustee, Leonard L. Bursten, Trustee, Appellees.

No. LL-467.

District Court of Appeal of Florida, First District.

Jan. 25, 1979.

Rehearing Denied March 9, 1979.

An Interlocutory Appeal from Circuit Court, Leon County; Charles E. Miner, Jr., Judge.

Daniel S. Dearing, Tallahassee, for appellant.

John A. Madigan, Jr., of Madigan, Parker, Gatlin, Swedmark & Skelding, Tallahassee, and Stephen C. Chumbris, of Harrison, Green, Mann, Rowe, Stanton & Mastry, St. Petersburg, for appellees Hyman Green, Irving Green, Honeymoon Isle Development Corp., National Development Corp., and Trustees of the Central States Southeast and Southwest Areas Pension Fund.

Jack W. Pierce, Tallahassee, for Reubin O'D. Askew, Governor, and Members Constituting Board of Natural Resources and Trustees of the State of Florida Land Acquisition Trust Fund and Trustees of the Internal Improvement Trust Fund and Harmon Shields. Andrew C. Hall of Storace, Hall and Hauser, Miami, for Appellees.

PER CURIAM.

Affirmed.

MILLS, Acting C. J., and McDONALD, PARKER LEE, Associate Judge, concur.

SMITH, J., dissents.

SMITH, Judge, dissenting:

The court affirms a venue order of the Circuit Court of Leon County, transferring this cause to the Circuit Court of Pinellas County on the ground that the action is local in nature because it affects title to Pinellas County land. I conceive that venue was properly laid in Leon County, where certain of the named defendants reside, and that the hoary "local action" rule does not in this case overcome plaintiff's statutory choice of venue. I therefore respectfully dissent.

All defendants except Irving Green and Leonard Bursten, residents of Dade County, and the state officials, residents in Leon, are nonresidents of Florida. The complaint alleges that defendants Hyman and Irving Green conspired to and did defraud plaintiff of his beneficial interest in the stock of a Florida corporation, now dissolved, called Honeymoon Isle Development Corp.; that plaintiff had a beneficial interest, memorialized by a trust agreement exhibited, in defendant Bursten's shares of the corporate stock; that the defendants Hyman and Irving Green persuaded Bursten to surrender his stock certificate and thereby possessed all of the outstanding stock; that Hyman Green then caused corporate assets, consisting of Pinellas County land, to be transferred to National Development Corporation, and then caused its transfer to Hyman Green individually, and caused the dissolution of Honeymoon Isle Development Corp.; that Hyman Green then assured plaintiff that the state had agreed to purchase the Pinellas County land, and that plaintiff would receive his pro-rata share of the proceeds of sale; that Hyman Green then effected a sale of the land to the defendants state officials, and fraudulently represented that his was the only valid interest in the land; and that Hyman Green, though he has received more than $16,000,000 of the purchase price, refuses to pay over plaintiff's asserted share, and refuses also to convey the plaintiff a proportionate part of the land yet to be transferred. Plaintiff prays for a declaration of his equitable ownership in "Honeymoon Isle Development Corp." and for an accounting of its assets and their disposition; for a constructive trust imposed on all assets fraudulently transferred by Hyman Green to himself, including monies paid by the state of Florida. Appellant Davidson filed this three-count complaint in the Circuit Court of Leon County, predicating his choice of venue on the residence there of the defendant state officials, whose joinder as parties defendant was not contested in the trial court or here.

Since 1829 the legislature has granted plaintiffs a choice, when suing resident defendants, between the forum "where the defendant resides," or "where the cause of action accrued," or "where the property in litigation is." Act of November 21, 1829, Section 7; as amended, Section 47.011, Florida Statutes (1977). ¹ Notwithstanding the phraseology of the venue statute, seemingly abrogating the common law rule that "all actions were local in character" and "could be brought only in the county where the cause of action arose," ² courts mindful of common law restrictions and of early-day territorial limitations on process continue to distinguish between actions In rem and those In personam and between actions transitory and "local". That distinction maintains some vitality today. E. g., Hendry Corp. v. State Board of Trustees of the Internal Improvement Trust Fund, 313 So.2d 453 (Fla. 2d DCA 1975); see also Carroll v. Carroll, 322 So.2d 53, 54 (Fla. 1st DCA 1975). The commonly accepted distinction was as stated by the Supreme Court in 1932 as follows:

"An action was transitory where the transaction on which it was founded might have taken place anywhere and was considered local where the transaction could only have happened or been consummated in the place where it was made. (Board of Pub. Instruction, supra, 111 Fla. at 12, 143 So. at 741.) ³

The local action rule was predicated on the forum court's power to act in respect to the subject matter in litigation, buttressed by considerations of convenience. Thus in 1855, the Supreme Court said, in deciding an action of trespass on lands which debatably lay either in Georgia or Florida,

For this action is strictly local in its character, and may not be brought out of the jurisdiction in which the alleged injury was committed. (McMillan v. Lacy, 6 Fla. 526, 530 (1855).)

The doctrinal necessity for the local action rule was stated in a later case contesting the power of a circuit judge to appoint a receiver of real property outside the circuit. State Board of Trustees of the Internal Improvement Fund v. Jacksonville, Pensacola and Mobile R. R. Co., 15 Fla. 201, 284 (1875):

This is a question of great importance, and in view of the conflict of jurisdiction between the second and fourth judicial circuit in this case, it should be settled. Under the constitution, this State is divided into seven judicial districts, and "the Circuit Courts in the several judicial circuits" are invested with general original jurisdiction in law and equity. There is no legislation which authorizes the appointment of a receiver of property which is property which is beyond the territorial limits of the circuits. Under these circumstances we can reach no other conclusion than that no such appointment can be made effectively; and that the Circuit Court, in all of its orders in this case, appointing a receiver of property beyond its limits, went beyond its authority. . . . It is a general principle of the common law that no writ or process can run or be executed beyond the territorial jurisdiction of the court out of which it issues; and independent of legislation, there can be no doubt that the Circuit Court of one circuit cannot through ist (sic) receiver take possession of property in another circuit.

Although the legislature in 1895 made summons, subpoenas and other process in civil actions "run throughout the state," ⁴ the power of courts to effectuate their process remained a continuing concern. In Lakeland Ideal Farm & Drainage Dist. v. Mitchell, 97 Fla. 890, 894, 122 So. 516, 518 (1929), the court sustained a demurrer to a bill of complaint praying in the Circuit Court of Polk County for damages and an injunction against continuing trespass allegedly committed on lands of the complainant in Hillsborough. The court stated:

Where . . . as here, a single cause of action is presented, in which a present and continuing trespass upon real estate is the sole basis of the suit and a determination of ownership is actually or potentially involved as a major issue, and the gravamen of the action is injury to the freehold and to crops affixed to and growing upon the land, and the principal relief sought is to restrain the continuing acts of trespass which occasion that damage, the rule is otherwise. Such an action is necessarily local in its nature, and must be maintained in the county where the land lies, in the absence of a competent and applicable statutory provision to the contrary. Although the acts of trespass complained of are in the nature of personal acts, the court looks to the underlying major question involved in the case to determine whether the action is local or transitory in its nature.

The court in Lakeland recognized that the injunction sought would be in the nature of a decree in personam, but held that "it could be rendered only after a determination and adjudication, as a predicate for the decree of the title to lands in another jurisdiction." 97 Fla. at 897-98, 122 So. at 519. Then the court expressed doubt over the chancellor's power to enforce any in personam injunction against the trespass:

A decree purely in personam would not be effective under the facts of this case, because the land lies beyond the jurisdiction of the court and the actual commission of an enjoined trespass would likewise lie beyond the reach of its process for contempt: The circuit court of Polk county would therefore be unable to make its injunction effective. (97 Fla....