Morris-Edge Masonry v. TONN & BLANK

461 So. 2d 1036, 10 Fla. L. Weekly 208

• Court: District Court of Appeal of Florida
• Decided: January 16, 1985
• Docket: 84-461
• Status: Published

Opinion

461 So.2d 1036 (1985)

MORRIS-EDGE MASONRY, INC., Appellant,
v.
TONN & BLANK, INC., Santa Lucea Development Corporation, American Druggists Insurance Company, Sunshine Kitchens, Inc., Stuart Paint & Supply, Ace Roofing & Tile, Inc., Gulfstream Tile, Erb Building Systems Pyramid Mechanical Contractors, Inc., Graybar Electric Company, Inc., and Builders Home & Supply, Appellees.

No. 84-461.

District Court of Appeal of Florida, Fourth District.

January 16, 1985.

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.

GLICKSTEIN, Judge.

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.