Summary
finding trial court's sua sponte order of consolidation, that had the effect of transferring plaintiff's action to another county, deprived the plaintiff of due process where no notice or opportunity to be heard was given by trial court
Summary of this case from Singer v. SingerOpinion
No. 84-461.
January 16, 1985.
Appeal from the Circuit Court, St. Lucie County, Rupert J. Smith, J.
Stephen B. Rakusin of Stephen B. Rakusin, P.A., Gainesville and Russell J. Ferraro, Jr., of McManus, Stewart Ferraro, P.A. Stuart, for appellant.
Stephen C. Page and David P. Ackerman of Gunster, Yoakley, Criser Stewart, P.A., Stuart, for appellees.
This is an appeal from a sua sponte order of consolidation that had the effect of transferring appellant's action to another county, thus depriving it of its chosen venue. Accordingly, we have jurisdiction to consider the appeal at this time. See Wagner v. Nova University, Inc., 397 So.2d 375, 377 (Fla. 4th DCA 1981).
We reverse the order because appellant's counsel never had notice of the trial court's intention to consider consolidation sua sponte. Appellant was deprived of due process of law. See Devoe Raynolds (sic) Co., Inc. v. KDS Paint Co., 382 So.2d 126 (Fla. 4th DCA 1980). On remand a change of venue may or may not be proper. That issue, however, has never been heard by the trial court after due notice has been furnished to counsel who would oppose such change.
DOWNEY and HURLEY, JJ., concur.