MARK P. STOPA v. KEVIN S. CANNON

Citation: Not availableDocket: 22-4162

Court: District Court of Appeal of Florida; November 15, 2023; Florida; State Appellate Court

Original Court Document: View Document

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Mark P. Stopa appeals a portion of a trial court's order related to his claims against Peter R. McGrath, Peter R. McGrath, P.A., and Kevin C. Cannon, arising from a real estate investment venture with Cannon. The trial court transferred the venue from Pinellas County to Orange County, which Stopa contests, while Cannon cross-appeals a ruling that he waived service of process by not challenging personal jurisdiction prior to sending a letter to two judges, which the court interpreted as a general denial of Stopa's allegations.

The court found that the venue transfer was made sua sponte based on forum non conveniens without notifying the parties or allowing them to be heard, leading to the reversal of that portion. The court affirmed the decision regarding Cannon's waiver of service without additional comments.

In his complaint, Stopa alleges he provided funds to Cannon for a property purchase in Pinellas County, which led to a deteriorating relationship. Stopa sought the return of his money, but Cannon assured him repayment from the sale proceeds after acquiring the property, which Cannon eventually sold. Stopa requested the closing agent to pay him from those proceeds, but was misled into believing a lien was unnecessary. After the sale, Stopa claims that McGrath, who controlled the trust account holding his funds, failed to pay him and instead disbursed the money to Cannon without notice. Cannon later hired McGrath to sue Stopa regarding the existence of a contract and to recover fees Stopa allegedly earned while representing Cannon's businesses. Stopa's complaint seeks to reestablish a lost fee agreement, along with damages for civil theft, breach of contract, fraudulent misrepresentation, and punitive damages against all defendants.

McGrath and McGrath P.A. filed a motion to transfer the venue from Pinellas County to Orange County, asserting that venue was appropriate in Orange County due to McGrath's residency, the law firm's location, and the accrual of the causes of action there, in accordance with section 47.011. They did not reference forum non conveniens per section 47.122. Stopa opposed this motion, claiming venue was proper in Pinellas County. A case management conference was scheduled for December 15, 2022, but the notice did not indicate that the trial court would address forum non conveniens. A week prior to the hearing, the trial court denied the motion based on section 47.011 but sua sponte transferred the case to Orange County, citing forum non conveniens. The court justified this by noting that all defendants and key witnesses resided in Orange County and many claims related to actions taken there.

Section 47.122 allows a trial court to transfer a civil action for the convenience of parties or witnesses or in the interest of justice, and a court can raise the issue sua sponte. However, both parties must be given notice and an opportunity to be heard before such a decision is made. Failing to provide notice constitutes a denial of due process, as established in various case precedents. Courts have reversed decisions made without proper notice or without the relevant parties having the chance to respond, emphasizing the necessity of procedural fairness even if one party raises a venue challenge.

Notice and an opportunity to be heard are essential for venue determinations involving forum non conveniens. Parties must submit affidavits or evidence regarding the convenience of parties and witnesses and the interests of justice. The court needs to understand who the witnesses are and the importance of their testimonies to weigh convenience effectively. An exception exists if the complaint clearly indicates a need for a forum non conveniens transfer. In this case, the complaint did not provide sufficient grounds for the trial court to decide on the transfer without considering additional evidence. Thus, the trial court mistakenly transferred the venue without notifying the parties or allowing them to present their case. The decision is partially reversed, partially affirmed, and remanded. KELLY and ATKINSON, JJ. concur. The opinion is subject to revision before official publication.