Wetherington v. State Farm Mut. Auto. Ins. Co.

• Decision Date: 27 October 1995
• Docket Number: No. 94-04330,94-04330
• Citation: 661 So.2d 1276
• Parties: 20 Fla. L. Weekly D2390 John and Karen WETHERINGTON, Appellants, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee.
• Court: Florida District Court of Appeals

Page 1276

661 So.2d 1276

20 Fla. L. Weekly D2390

John and Karen WETHERINGTON, Appellants, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee.

No. 94-04330.

District Court of Appeal of Florida,

Second District.

Oct. 27, 1995.

Stephen A. Rappenecker of Holden, Williams, Rappenecker, Murphy and Eubank, P.A., Gainesville, for Appellants.

Karen A. Barnett of McKendree, Driscoll & Silver, Tampa, for Appellee.

FULMER, Judge.

By direct appeal, John and Karen Wetherington challenge a nonfinal order that consolidated two cases. Before proceeding further, we address a jurisdictional issue. A nonfinal order granting a motion to consolidate is not subject to review by direct appeal. See Fla.R.App.P. 9.130(a)(3). Nevertheless, both the appellants and the appellee assert that this court has jurisdiction because the order "concerns venue." While the trial court's order does result in a de facto transfer of venue for one case, we do not agree that this "Order Granting Defendant's Motion to Consolidate" becomes an order concerning venue for the jurisdictional purpose of Florida Rule of Appellate Procedure 9.130(a)(3)(A). However, because we conclude that the trial court acted in excess of its jurisdiction, we treat this appeal as a petition for writ of certiorari which should be granted. See Hudson v. Hofmann, 471 So.2d 117 (Fla. 2d DCA 1985).

The consolidated cases involve claims made by the Wetheringtons arising out of two automobile accidents. Appellee, State Farm, became a defendant in both cases. The first case was based on a 1985 accident that occurred in Hillsborough County and was filed in 1987 in the circuit court of Hillsborough County. The second case was based on a 1989 accident that occurred in Gilchrist County and was filed in 1992 in the circuit court of Gilchrist County. State Farm filed a motion in the Hillsborough County case, pursuant to Florida Rule of Civil Procedure 1.270, ¹ asking the court to consolidate the two cases and order that they be tried in Hillsborough County. The trial court granted the motion over the Wetheringtons' objection.

Generally, consolidation is within the discretion of the trial court. See, e.g., Department of Highway Safety v. Scott, 583 So.2d 785 (Fla. 2d DCA 1991). ² However, a court may only order consolidation of actions that are "pending before the court." Only one of the cases ordered to be consolidated was "pending before the court," that being the case filed in the circuit court of the Thirteenth Judicial Circuit in Hillsborough County. The second case was pending in the circuit court of the Eighth Judicial Circuit in Gilchrist County. More importantly, the trial court was without authority to exercise any jurisdiction over the case pending in the Eighth Judicial Circuit.

Article V, section 1, of the Florida Constitution requires that the legislature "divide the state into appellate court districts and judicial circuits following county lines." Section 5(a) provides for a circuit court "serving each judicial circuit." Section 7 provides that courts may sit in divisions and may hold trials and hearings "within the territorial jurisdiction of the court." Thus, "Article V, having carefully placed its courts in geographic territories and geographically logical relationships with each other, expects its courts to act where they are placed and in those judicial relationships exclusively." Miami-Dade Water & Sewer Auth. v. Cormio, 388 So.2d 1238, 1246 (Fla. 1st DCA 1979) (Smith, J., concurring), aff'd sub nom., Rollins v. Southern Bell Telephone and Telegraph Co., 384 So.2d 650 (Fla.1980).

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